Porter, Application under the Superannuation Industry (Supervision) Act 1993 [2012] FCA 1431

FEDERAL COURT OF AUSTRALIA

Porter, Application under the Superannuation Industry (Supervision) Act 1993 [2012] FCA 1431 Citation: Porter, Application under the Superannuation Industry (Supervision) Act 1993 [2012] FCA 1431

Parties: CHRISTOPHER DOUGLAS PORTER; APPLICATION UNDER THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993

File number: ACD 81 of 2012

Judge: FOSTER J

Date of Orders: 7 December 2012

Date of Reasons: 17 December 2012

Catchwords: SUPERANNUATION – supervision of superannuation entities and responsible officers of such entities – whether the Court should exercise its discretion pursuant to s 126J(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) to make an order that an individual who has committed offences of dishonesty should no longer be a disqualified person within the meaning of Pt 15 of that Act – relevant principles guiding the exercise of discretion discussed

Legislation: Corporations Act 2001 (Cth), s 206G Crimes Act 1900 (NSW), s 158 Crimes Act 1914 (Cth), Div 3 of Pt VIIC Criminal Records Act 1991 (NSW), s 7 Financial Sector Legislation Amendment (Review of Prudential Decisions) Act 2008 (Cth) Superannuation Industry (Supervision) Act 1993 (Cth), ss 3, 10(1), 119, 120, 122, 123, 124, 125, 126, 126B, 126C, 126D, 126F, 126H, 126J(1)(b), 126K, 126L and 127

Cases cited: Duffy; Re Westgate Ports Ltd (2010) 79 ACSR 267 cited

Date of hearing: 7 December 2012

Place: Sydney (via video link to Canberra) (heard in Canberra)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 35

Counsel for the Applicant: Mr WL Sharwood

Solicitor for the Applicant: Hall & Wilcox

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 81 of 2012

APPLICATION UNDER THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993 CHRISTOPHER DOUGLAS PORTER

Applicant

JUDGE: FOSTER J DATE OF ORDER: 7 DECEMBER 2012 WHERE MADE: SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

Pursuant to s 126J(1)(b) of the Superannuation Industry (Supervision) Act 1993 (Cth), Christopher Douglas Porter is not a disqualified person. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 81 of 2012

APPLICATION UNDER THE SUPERANNUATION INDUSTRY (SUPERVISION) ACT 1993 CHRISTOPHER DOUGLAS PORTER

Applicant

JUDGE: FOSTER J DATE: 17 DECEMBER 2012 PLACE: SYDNEY (VIA VIDEO LINK TO CANBERRA)

(HEARD IN CANBERRA)

REASONS FOR DECISION 1 By his Originating Application filed on 13 November 2012, the applicant sought an order pursuant to s 126J(1)(b) of the Superannuation Industry (Supervision) Act 1993 (Cth) (the SIS Act) that he is not a disqualified person within the meaning of that expression in Pt 15 of the SIS Act. When the matter was returned before the Court the Friday before last (7 December 2012), I made the order sought. These are my reasons for doing so. 2 On 31 August 1988 and on 1 September 1988, the applicant was charged with twenty-six (26) offences under s 158 of the Crimes Act 1900 (NSW) in that during the period from late April 1987 to late August 1988 he made false entries in the business records of his then employer, Friends Provident Life Office, which entries enabled him regularly throughout that period to steal various sums of money from his employer. The total amount stolen was $34,741. 3 The applicant was indicted on all 26 charges and committed for trial in the District Court of New South Wales in Sydney in April 1989. He subsequently pleaded guilty to 10 of the charges and formally requested that the remaining 16 counts be taken into account by the presiding judge in passing sentence on him. 4 On 24 May 1989, the applicant was convicted of the offences to which he had pleaded guilty and sentenced by Judge Shadbolt. The remaining counts were taken into account by the judge, in passing sentence, as the applicant had requested. 5 His Honour deferred passing sentence on the applicant and ordered the applicant to enter into a recognizance in the amount of $1,000 to be of good behaviour for a period of three (3) years and to appear if called upon to do so for any breach of that recognizance in that period. His Honour also ordered that it be a term of that recognizance that the applicant place himself under the supervision of the Probation and Parole Service for as long as that Service deemed it appropriate. It was a further term of the recognizance ordered by his Honour that the applicant repay the balance of the stolen funds which, as at 24 May 1989, remained unpaid (viz $20,994) within the term of the recognizance. The applicant was ordered to pay to the District Court Registry in Sydney the amount of $800.00 per calendar month until the full amount of the debt was extinguished. Those payments were to commence on 30 June 1989. Thus, the applicant avoided a custodial sentence. His Honour was inclined to think that the commission of the offences with which the applicant had been charged was "… an aberration of an otherwise law abiding lifestyle". Because of this, his Honour thought that the applicant should be given an opportunity to prove himself outside prison and to repay the balance of the stolen funds. 6 The fact that the applicant was convicted of the offences to which he pleaded guilty as described at [2]–[4] above meant that, when the SIS Act came into force in 1993, he became a disqualified person for the purposes of Pt 15 of that Act. The applicant accepts this. That is the premise upon which the present application has been brought. As a result of becoming a disqualified person, the applicant was thereafter prohibited from being or acting as a trustee, investment manager or custodian of a superannuation entity and from being a responsible officer of a body corporate that was or acted as a trustee, investment manager or custodian of a superannuation entity. If the applicant were to act in any of these capacities at a time when he was a disqualified person, he would be at risk of committing offences under the SIS Act (as to which see s 126K of the SIS Act). 7 In the SIS Act, unless the contrary intention appears, responsible officer in relation to a body corporate means (amongst other things) an executive officer of the body corporate (see the definition of responsible officer in s 10(1)). Executive officer is defined to mean a person, by whatever name called and whether or not a director of the body corporate, who is concerned, or takes part, in the management of the body (see the definition of executive officer in s 10(1)). 8 In early 2012, the applicant applied for a senior executive position with the trustee of the MTAA Superannuation Fund (MTAA Super). The trustee of MTAA Super is Motor Trades Association of Australia Superannuation Fund Pty Limited (the trustee). The position for which the applicant applied was styled "Executive Manager Operations". He was appointed to that position on 1 May 2012 and apparently has performed that role ever since. That position is one which meets the description "… responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity" within the meaning of s 126K(4) and s 126K(5) of the SIS Act. 9 The applicant had been originally employed by the trustee as "Manager of Administration and Operations", commencing in August 2008. The evidence does not permit any firm conclusion to be reached as to whether that role also met the definition of responsible officer set out in s 10(1) of the SIS Act. 10 By making the present application, the applicant hoped to be released for the future from the strictures imposed upon his employability by his 1989 convictions.

The Relevant Provisions of the SIS Legislation 11 The object of the SIS Act is to make provision for the prudent management of certain superannuation funds, approved deposit funds and pooled superannuation trusts and for their supervision by APRA, ASIC and the Commissioner of Taxation (s 3). The SIS Act regulates those funds and trusts through a system of registration and licensing and by supervision carried out by the regulators, APRA, ASIC and the Commissioner of Taxation. The legislation also contains rules governing the operations of such entities and specifies appropriate operational and prudential standards in respect of them. 12 Part 15 of the SIS Act comprises s 119 to s 127. That Part is headed: Standards for Trustees, Custodians and Investment Managers of Superannuation Entities. There are four Divisions within Pt 15: Division 1 – Object of Part and definition of disqualified person (s 119–s 120); Division 2 – Requirements for custodians and investment managers (s 122–s 125); Division 3 – Disqualified persons (s 126–s 126L); and Division 4 – Non-compliance not to invalidate appointment or transaction (s 127). 13 Division 3 comprises subdivisions A, B and C. Subdivision A deals with disqualification by the Commissioner of Taxation and Subdivision B deals with disqualification by this Court and applies to the extent that the regulator is APRA. With the exception of s 126J which bestows upon the Court the power to revoke or vary a disqualification or order that a disqualified person not be a disqualified person, none of the provisions contained in those subdivisions is presently relevant. It should be noted, however, that s 126H provides that, on application by APRA, the Court may disqualify a person from acting in certain capacities in relation to certain superannuation entities. 14 Subdivision C (Other matters relating to disqualification) (s 126K and s 126L) is relevant to the present application. 15 Section 119 of the SIS Act specifies the object of Pt 15 in the following terms: The object of this Part is to set out rules about the eligibility of trustees, custodians and investment managers of superannuation entities. 16 Relevantly for present purposes, s 120 provides that an individual is a disqualified person for the purposes of Pt 15 if, at any time (including at a time before the commencement of the section) the individual was convicted of an offence against a law of a State being an offence in respect of dishonest conduct (see s 120(1)(a)(i)). "Dishonest conduct" is not defined. There is no doubt that the offences of which the applicant was convicted on 24 May 1989 were all offences "… in respect of dishonest conduct …" within the meaning of s 120(1)(a)(i) of the SIS Act. Section 120(4) provides: (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. 17 Division 3 of Pt VIIC of the Crimes Act 1914 (Cth) contains the rules which govern the Federal spent convictions scheme. 18 Section 126J is in the following terms: 126J Court power to revoke or vary a disqualification etc. (1) A disqualified person, or the Regulator, may apply to the Federal Court of Australia for: (a) if an individual is a disqualified person only because he or she was disqualified under section 126H—a variation or a revocation of the order made under that section; or (b) otherwise—an order that the person is not a disqualified person. (2) If the Court revokes an order under paragraph (1)(a) or makes an order under paragraph (1)(b), then, despite section 120, the person is not a disqualified person. (3) At least 21 days before commencing the proceedings, written notice of the application must be lodged: (a) if the disqualified person makes the application—by the person with the Regulator; or (b) if the Regulator makes the application—by the Regulator with the disqualified person. (4) An order under paragraph (1)(b) may be expressed to be subject to exceptions and conditions determined by the Court. 19 Section 126K creates certain offences. Subsections (4) to (8) are presently relevant. Those subsections provide: (4) A person commits an offence if: (a) the person is a disqualified person; and (b) the person knows he or she is a disqualified person; and (c) the person is or acts as a responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity; and (d) for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H—the person is disqualified from being or acting as that responsible officer. Penalty: Imprisonment for 2 years. (5) A person commits an offence if: (a) the person is a disqualified person; and (b) the person knows he or she is a disqualified person; and (c) the person is or acts as a responsible officer of a body corporate that is a trustee, investment manager or custodian of a superannuation entity; and (d) for a person who is an individual and who is a disqualified person only because he or she was disqualified under section 126H—the person is disqualified from being or acting as that responsible officer. Penalty: 60 penalty units. (6) Subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. (7) A person commits an offence if: (a) the person is a trustee of a superannuation entity; and (b) the person is or becomes a disqualified person; and (c) the person does not tell the Regulator in writing immediately. Penalty: 50 penalty units. (8) Subsection (7) is an offence of strict liability. Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Note 2: For strict liability, see section 6.1 of the Criminal Code. 20 Section 126L is not presently relevant.

The Evidence in Support of the Application 21 In support of his Application, the applicant relied upon two affidavits and a witness statement. These were: (i) Affidavit of the applicant sworn on 8 November 2012; (ii) Affidavit of Leeanne Cherise Turner sworn on 2 November 2012. Ms Turner is the current Chief Executive Officer of the trustee; and (iii) Statement made by the applicant dated 5 December 2012 (Exhibit A). 22 Ms Turner was the person who made the decision to promote him to his current position. 23 By letter dated 17 August 2012, the applicant's lawyers gave notice to APRA of the applicant's intention to make his s 126J(1)(b) application. Very little information was provided to APRA in that letter. The existence of one charge was nonetheless disclosed. APRA appears nonetheless to be fully apprised of the applicant's 1989 convictions. 24 The Court was not provided with full details of the subsequent communications between the applicant and/or his lawyers, on the one hand, and APRA, on the other hand. This is unsatisfactory. However, it seems that APRA drew the applicant's attention to certain matters that APRA considered required further explanation. The applicant accepted this. He prepared and signed his Statement dated 5 December 2012 (Exhibit A) in an endeavour to provide the further explanations required by APRA. That Statement was then provided to APRA. At the hearing before me, the applicant verified the contents of that Statement. Subsequently, by letter dated 6 December 2012 to the applicant's lawyers (which letter became Exhibit B) APRA confirmed to the applicant's lawyers that it did not intend to take any steps in respect of the applicant's application unless requested by the Court. APRA said that it did not intend to appear before the Court on 7 December 2012. Nonetheless, it required the applicant to tender the applicant's District Court criminal file. At the hearing, the applicant tendered that file. It became Exhibit C. APRA took no steps to oppose the applicant's application. It did not appear before me. It seems to have adopted a position of perfect neutrality in relation to that application. 25 In addition to the matters referred to at [2]–[5] above, the above evidence relevantly established that: (a) When the applicant committed the first offence in late April 1987, he was 24 years of age. He is now 50. (b) At no stage, when charged by the police with the 26 offences, when interviewed by a NSW Probation and Parole Officer or when sentenced by Judge Shadbolt, did the applicant offer any reason or explanation for his conduct. All that he said in 1988 and 1989 was that he had been under financial pressure. In his affidavit sworn and filed in this proceeding, the applicant said: The monies were used primarily to cover medical expenses for my sister, Martina Jean Reeve (née Porter). Prior to my wrongful conduct, in 1984, Martina had been diagnosed with Multiple Sclerosis. Some years after being diagnosed Martina became pregnant. Her illness was complicated by her pregnancy and she soon needed an electric wheelchair for mobility. Sadly, Martina died in 1993. The applicant went on to explain that neither his parents nor his siblings could afford to purchase such a wheelchair for his sister. He said that he stole in order to secure the wheelchair for his sister more quickly than would have been possible if he had not stolen. He also conceded that he used some of the stolen monies for his own benefit. In Exhibit A, the applicant endeavoured to explain why he had not mentioned his sister's circumstances when charged and sentenced in 1988 and 1989. He said that he had not wanted to use his sister's circumstances as an excuse for his wrongdoing. (c) There was no direct evidence that any of the stolen funds had been used to assist the applicant's sister. Rather, the evidence showed that the stolen monies had been used to pay the applicant's own expenses (including personal credit card debts). In Exhibit A, he endeavoured to explain this by asserting that the debts which had been incurred and discharged with stolen monies had only been incurred because he had used other funds to assist his sister. (d) On a date in 2012 which was not specified by him in either his affidavit or in his statement, the applicant said that, after being invited to apply for the position which he currently holds, he was required to complete certain forms, "… including forms requiring the disclosure of any convictions for dishonesty". The sense of his evidence was that this was when he realised that he was obliged to disclose his 1989 convictions. He went on to say that, on 31 July 2012, he told Ms Turner of his convictions and offered to resign. She did not accept his resignation and suggested that he apply to the Court to overcome the problem caused by his convictions. (e) The applicant is in a stable marriage of 25 years' duration. He and his wife have two children. He is comfortably off. He has not been charged with or convicted of any criminal offence since 1989. He earns a substantial salary in his current position with the trustee. He has had a successful career since 1989. He repaid all of the stolen funds within a period of three years after being sentenced. He showed genuine remorse for his wrongful conduct when charged in 1988. He again showed genuine remorse when disclosing his dishonest conduct to Ms Turner earlier this year. (f) Ms Turner supported the applicant's application. She regards him as trustworthy. She said that she was aware that he had been convicted of an offence involving dishonest conduct some 25 or so years ago. She did not specify precisely her state of knowledge about this. She also said that, in his current role, the applicant does not have access to member records. 26 The District Court file confirmed the facts and matters which I have described at [2]–[5] above. It also established the following: (a) All of the stolen funds were used to pay personal debts of the applicant. There was nothing in the file that supported his assertion that the monies were used to assist his sister. (b) The dishonest conduct of the applicant was systematic and calculated. It extended over a period of 16 months. At various times in that period he had attempted to conceal his thefts from his employer. (c) He had co-operated fully with the police after he was arrested. He had shown genuine remorse.

Consideration 27 The applicant relies upon s 126J(1)(b) of the SIS Act. That subsection gives to this Court a discretion to declare that an individual is not a disqualified person for the purposes of Pt 15 of the SIS Act notwithstanding that that individual has, prior to the making of the Court order, been caught by the definition of disqualified person in s 120 of the SIS Act. An order under s 126J(1) may be expressed to be subject to such exceptions and conditions as may be determined by the Court. Notice of the application for an order under s 126J(1) must be given by the disqualified person at least 21 days before the application is filed (s 126J(3)(a)). In the present case, that notice was given by the letter dated 17 August 2012 from the applicant's lawyers to APRA. 28 There are no criteria or guidelines expressed in the SIS Act or in the regulations made under that Act as to the matters which should, or could, be taken into account by the Court when considering and determining an application under s 126J(1). This state of affairs may be contrasted with the position under subdiv A of Div 3 of Pt 15 where the regulator (the Commissioner of Taxation) called upon to consider waiving an individual's status as a disqualified person is required to comply with detailed procedures and protocols (as to which see s 126B, s 126C, s 126D and s 126F). In particular, the regulator is obliged to satisfy himself or herself that the waiver applicant is highly unlikely to contravene the SIS Act (s 126D(1A)(f)) or do anything that would result in a self-managed superannuation fund not complying with the SIS Act (s 126D(1A)(g)). In determining whether he or she is satisfied of those matters, the regulator must have regard to the factors listed in s 126D(1A)(a) to (e). 29 The language of s 126J(1)(b) is curious. A disqualified person may (emphasis added) apply to the Court for an order that the person is not a disqualified person. Clearly, the provision is intended to authorise the making of the relevant application if the applicant decides to bring it forward. The subsection does not, however, speak in terms which ordinarily denote the grant of a discretionary power to the Court (eg "… upon application by a disqualified person, the Court may order …"). Nonetheless, I think that s 126J(1)(b) should be interpreted as conferring a broad discretion upon the Court to decide whether to make the order contemplated by the subsection and, if so, on what terms. In considering whether to exercise the discretion and, if so, how, the Court must take into account the purpose or object of the SIS Act and, in particular, the purpose or object of Pt 15 of that Act. The object of the SIS Act is set out in s 3. The object of Pt 15 is specified in s 119. Therefore, in any given case, when the Court's jurisdiction under s 126J(1)(b) is engaged, the Court is obliged to determine the application by paying due regard to the fact that: (a) Part 15 of the SIS Act is intended to set out rules governing the eligibility of persons to take up positions of responsibility with superannuation entities; and (b) The principal object of the SIS Act generally insofar as superannuation entities are concerned is to make provision for the prudent management and supervision of such entities. 30 Subdivision B of Div 3 of Pt 15 of the SIS Act was introduced, in its present form, into the SIS Act by the Financial Sector Legislation Amendment (Review of Prudential Decisions) Act 2008 (Cth) (the 2008 amendment). The 2008 amendment was intended to replace regulator-based disqualification in respect of those activities regulated by APRA with Court-based processes. The Explanatory Memorandum promulgated by the government at the time made clear that the intention of the government was to bring the disqualification regime broadly into line with the disqualification regime under the Corporations Act 2001 (Cth) (the Corporations Act). By approaching APRA regulated entities in this way, the legislature made a clear distinction between ATO regulated entities (essentially, SMSFs) and APRA regulated entities. 31 It seems to me, therefore, that the Court is entitled to have regard to the jurisprudence developed by the Court in relation to the disqualification and reinstatement of officers of corporations pursuant to the Corporations Act. In particular, for present purposes, the Court is entitled to have regard to the jurisprudence developed by the Court in respect of s 206G of the Corporations Act. Of course, the Court must keep in mind as the overarching consideration the purpose and object of the SIS Act and Pt 15 of the SIS Act reflected in s 3 and s 119 respectively. 32 In Duffy; Re Westgate Ports Ltd (2010) 79 ACSR 267 at [19], Gordon J summarised the relevant principles which have been developed by this Court in respect of its exercise of discretion pursuant to s 206G of the Corporations Act. After referring to a number of authorities, her Honour said: … Those principles may be summarised as follows: (1) the applicant bears the onus of establishing that the court should make an exception to the legislative policy underlying the prohibition; (2) the legislative policy is one of protecting the public, not one of punishing the offender: Re HIH Insurance Ltd (in prov liq) and HIH Casualty and General Insurance Ltd (in prov liq); Australian Securities and Investments Commission v Adler (2002) 42 ACSR 80; [2002] NSWSC 483 at [56]; cf Australian Securities and Investments Commission v Vizard (2005) 145 FCR 57 at [35] and Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; 209 ALR 271; 50 ACSR 242; [2004] HCA 42 at [41]–[43]; (3) another objective is to deter others from engaging in conduct of the particular kind in question; (4) the prohibition itself contemplates that there will be hardship to the offender. Therefore, hardship to the offender alone is not a persuasive ground for the granting of leave; (5) the court in exercising its discretion will have regard to the following factors (Re Magna at 205; cited in Re Zim Metal at 555): (i) the nature of the offence; (ii) the applicant's general character, including conduct prior to and in the period since the offence; (iii) any risks to shareholders, creditors, employees or to the public should the applicant assume the management position proposed; (iv) any acknowledgement of wrongdoing and co-operation by the applicant; (v) whether the applicant's general character is such that he has never before offended, whether he is a valuable and contributing member of the community and whether re-offending is unlikely: see for example, Pace at [7]; (vi) the structure of the companies. (The applicant referred to Jansen v Australian Securities and Investments Commission [2003] FCA 1564, where Mansfield J found the shareholding structure to be of significance in granting leave, as the company had only three shareholders, including the applicant, and the other shareholders were aware of his background and were supportive of his application: in particular at [12] and [14]); (vii) the degree of control which the applicant would be able to exercise (Marsden; cited in Pace at [23]) and the level of supervision (Pace at [29]); and (viii) whether the applicant has before the court a specific proposal to take part in the management of a specified corporation or corporations, and whether what is proposed accords with proper commercial standards: see Re Shneider (1996) 71 FCR 69; 142 ALR 129; 22 ACSR 497 (Shneider) in which Drummond J stated that the legislative policy of public protection could not be met without a specific and commercially proper proposal before the court. Shneider concerned the predecessor of s 206G of the Act, s 229(3) of the Corporations Law, however the legislative policy and the approach to be adopted would be consistent, particularly as s 206G specifically refers to leave to manage a particular corporation. 33 Principles (1) to (4) have direct application in the present case. Principle (5) contains a number of important factors in the corporate context which, when adapted and applied to the present context, provide most useful guidance as to the way in which the discretion given to the Court by s 126J(1) of the SIS Act should be exercised. 34 In making the order which I did on 7 December last, I considered the following factors: (1) The applicant bears the onus of establishing that the Court should make an exception to the legislative policy underlying the prohibition reflected in s 120 of the SIS Act. (2) The legislative policy is designed to protect the public, not to punish the offender. The legislature is concerned to ensure that those who are entrusted with positions of responsibility in respect of the retirement savings of others should be beyond reproach. (3) General deterrence may be a factor, depending upon the importance of other considerations. (4) The prohibition itself contemplates that there will be hardship to the offender. Therefore, hardship to the offender alone is not a persuasive ground for making an order under s 126J(1) of the SIS Act. (5) The following particular matters were significant: (a) The offences were very serious. They took place over a lengthy period of time. They demonstrated a systematic and calculated disregard for the position of trust held by the applicant. The nature, number and calculated way in which the offences were committed were the most significant factors weighing against the grant of the relief sought by the applicant. (b) At the time of the offences, the applicant was a relatively young man (25 or 26 years of age). He had not reached a level of maturity which would necessarily result in the offences being regarded as having been committed by a person of sufficient experience and understanding of life with the consequence that the wrongful conduct should be regarded as demonstrative of his true character. (c) The applicant has not been charged with any offence since his convictions in 1989. Prior to those convictions, he had an unblemished record. (d) The applicant repaid to his employer all of the funds which he had stolen from it. (e) The applicant demonstrated both in 1988 and in 1989, and, indeed, before me, genuine remorse for his conduct. In addition, he co-operated fully with the police in their investigation at the time. Furthermore, he pleaded guilty thereby accepting the wrongfulness of his conduct and saving the court system and the police a great deal of time and trouble. (f) It is now almost 23 years since the 1989 convictions and a little longer since the offences were committed. In that period, the applicant has had a number of responsible jobs and demonstrated honesty in both those jobs and generally. He has had a successful career by any assessment. (g) The applicant is now in a responsible position earning a significant salary. He is in a stable marriage with no apparent financial pressures beyond the norm. (h) The applicant offered an explanation for his wrongdoing viz his desire to assist his sister. I had some considerable reservations about this explanation, given that it was raised for the first time only very recently and was not supported by any documentary or other evidence. I gave very little weight to this explanation in my consideration of the matter given my reservations about the truthfulness of it. (i) The 1989 convictions are spent convictions (see s 7 of the Criminal Records Act 1991 (NSW)). This means that the existence of those convictions is ordinarily protected from disclosure. The idea behind the spent convictions schemes is to give offenders a second chance recognising that they may be rehabilitated. The legislature has considered that an older criminal record should not limit the opportunities in life for those who have been rehabilitated and that persons should not be stigmatised by their criminal record. These are all matters which are directed to the position of the individual who has been disqualified under the SIS Act. As is the case in the Corporations Act context, the position of that individual should not be given much weight because the primary notion underpinning the disqualification regime is the protection of the public as reflected in s 3 and s 119 of the SIS Act. However, I gave this consideration some weight in the exercise of my discretion. (j) The applicant has the support of his current CEO and apparently the support of the Chairman of the Board of the trustee. APRA is aware of the application and, having undertaken initial enquiries, has not seen fit to attend before the Court to oppose the application or to place any information whatsoever before the Court. Given that APRA is the appointed regulator for superannuation entities, I assumed, when exercising my discretion, that APRA had no objection to the applicant being granted the relief which he sought and did not wish to place any matter before the Court other than the District Court criminal file. 35 As is apparent from the considerations which I took into account, most of them weighed in favour of the applicant being granted the order which he sought. The most significant considerations weighing against the grant of that relief are those summarised at [34(5)(a)] above. On balance however, I came to the view that I should make the order sought and did so. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate: Dated: 17 December 2012