The Federal Court has set aside a decision of the Administrative Appeals Tribunal (AAT) not to disqualify John Gilliland’s self-managed super fund (SMSF) auditor registration.

Following an appeal by ASIC, the Court found that general deterrence is a relevant consideration in deciding whether to disqualify a person as an approved SMSF auditor under section 130F of the Superannuation Industry (Supervision) Act 1993 (Cth).

The Court found that the AAT had not considered general deterrence when making its decision.

The matter has been remitted back to the AAT to have the matter re-determined.

As a result of the Federal Court’s decision, Mr Gilliland is again disqualified as an SMSF auditor, pending a final decision by the AAT.

Download the Federal Court's reasons for decision

Background

ASIC disqualified Mr Gilliland from being an approved SMSF auditor for breaching independence requirements in auditing his own fund, the fund of an immediate family member and the fund of a close family member (refer: 18-327MR).

Mr Gilliland sought a review of ASIC’s decision by the AAT. The AAT set aside ASIC’s decision (refer: 20-208MR). ASIC subsequently appealed to the Federal Court, which handed down its decision on 30 November 2022.

Editor's note: 

On 25 March 2024, the Administrative Appeals Tribunal ordered that the decision to disqualify Mr Gilliland be varied so that he instead be suspended for the period of five years effective from 15 August 2018. The order was made following an agreement between ASIC and Mr Gilliland including that: Mr Gilliland accepts he breached the relevant provisions of Accounting Professional & Ethical Standards Code (APES 110) as alleged and agrees not to undertake any further audits; he abandons his submissions filed with the AAT on 15 March 2024; and upon the making of the orders he will immediately apply to voluntarily resign his registration as an approved SMSF auditor.