Banking Act 1959

Pt IIAA repealed by No 68 of 2023, s 3 and Sch 1 item 107, effective 15 March 2024.

Pt IIAA inserted by No 5 of 2018, s 3 and Sch 1 item 1, effective 1 July 2018. No 5 of 2018, s 3 and Sch 1 items 15 - 18 contain the following application provisions:

Part 3 - Application of amendments

15 Requirement to register  
If, immediately before the commencement of Part IIAA of the Banking Act 1959 as amended by this Act, a person held a position, in or relating to an ADI or a subsidiary of an ADI, that causes the person on that commencement to be an accountable person of that ADI or subsidiary, paragraph 37DA(1)(a) of that Act as so amended does not apply in relation to that person until the end of the period of 90 days after that commencement. 16 Deferral of variable remuneration  
(1)
Division 4 of Part IIAA of the Banking Act 1959 as inserted by this Act applies in relation to the variable remuneration of an accountable person only if the decision granting the accountable person the variable remuneration was made on or after 1 January 2019.

(2)
Despite subitem (1), if an accountable person ' s variable remuneration is payable under a contract entered into before the day this Act received the Royal Assent, Division 4 of Part IIAA of the Banking Act 1959 as inserted by this Act does not apply in relation to the variable remuneration until 1 January 2020.

(3)
Despite subitem (1), if:

(a) an accountable person ' s variable remuneration is payable under a contract entered into before the commencement of Part IIAA of the Banking Act 1959 as inserted by this Act; and

(b) apart from this subitem, the application of Division 4 of that Part in relation to the variable remuneration would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph);

that Division does not apply in relation to the variable remuneration to the extent that it would result in such an acquisition.

Note:

Because this subitem prevents Division 4 of Part IIAA of the Banking Act 1959 from giving rise to such an acquisition of property in relation to variable remuneration payable under such a contract, compensation will not be payable under section 69E of that Act.

17 Accountability statements and accountability maps  
(1)
APRA may, by legislative instrument, determine, in relation to accountability statements and accountability maps mentioned in section 37F of the Banking Act 1959 as inserted by this Act, transitional requirements applying during the period (the transition period ) of 18 months after the commencement of Part IIAA of the Banking Act 1959 as so inserted.

(2)
Compliance during the transition period with those transitional requirements, to the extent that they relate to accountability statements, is taken, for the purposes of the Banking Act 1959 , to be compliance with paragraph 37F(1)(a) of that Act as inserted by this Act.

(3)
Compliance during the transition period with those transitional requirements, to the extent that they relate to accountability maps, is taken, for the purposes of the Banking Act 1959 , to be compliance with paragraph 37F(1)(b) of that Act as inserted by this Act.

(4)
This item does not limit the ways paragraph 37F(1)(a) or (b) of the Banking Act 1959 as inserted by this Act may be complied with during the transition period.
18 Application to small and medium ADIs  
(1)
Despite item 15 and subitem 16(1), Part IIAA of the Banking Act 1959 as inserted by this Act applies in relation to the following on and after 1 July 2019:

(a) a medium ADI;

(b) a small ADI;

(c) an accountable person of a medium ADI;

(d) an accountable person of a small ADI.

(2)
Despite subitem (1), if:

(a) an accountable person ' s variable remuneration is payable under a contract entered into before the commencement of Part IIAA of the Banking Act 1959 as inserted by this Act; and

(b) apart from this subitem, the application of Division 4 of that Part in relation to the variable remuneration would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph);

that Division does not apply in relation to the variable remuneration to the extent that it would result in such an acquisition.

Note:

Because this subitem prevents Division 4 of Part IIAA of the Banking Act 1959 from giving rise to such an acquisition of property in relation to variable remuneration payable under such a contract, compensation will not be payable under section 69E of that Act.

(3)
Despite item 17, transitional requirements determined by APRA under that item apply in relation to a medium ADI, or a small ADI, on and after 1 July 2019.

Div 1 repealed by No 68 of 2023, s 3 and Sch 1 item 107, effective 15 March 2024.

Div 1 inserted by No 5 of 2018, s 3 and Sch 1 item 1, effective 1 July 2018. For application provisions, see note under Pt IIAA heading.

Subdiv B repealed by No 68 of 2023, s 3 and Sch 1 item 107, effective 15 March 2024.

Subdiv B inserted by No 5 of 2018, s 3 and Sch 1 item 1, effective 1 July 2018. For application provisions, see note under Pt IIAA heading.

S 37BA repealed by No 68 of 2023, s 3 and Sch 1 item 107, effective 15 March 2024. S 37BA formerly read:

SECTION 37BA Meaning of accountable person  
General principle

(1)
An individual is an accountable person , of an ADI or a subsidiary of an ADI, if he or she:

(a) either:

(i) in the case of the ADI - holds a position in the ADI or in another body corporate of which the ADI is a subsidiary; or

(ii) in the case of a subsidiary of the ADI - holds a position in the subsidiary; and

(b) because of that position, has actual or effective senior executive responsibility:

(i) for management or control of the ADI; or

(ii) for management or control of a significant or substantial part or aspect of the operations of the ADI or the relevant group of bodies corporate that is constituted by the ADI and its subsidiaries.

Particular responsibilities

(2)
Without limiting subsection (1), an individual is also an accountable person of an ADI if he or she:

(a) holds a position in, or relating to, the ADI; and

(b) because of that position, has a responsibility, relating to the ADI:

(i) of a kind set out in subsection (3); or

(ii) of a kind determined under subsection (4).

(3)
For the purposes of subparagraph (2)(b)(i), the following are the responsibilities:

(a) responsibility for oversight of the ADI as a member of the Board of the ADI;

(b) senior executive responsibility for carrying out the management of all the business activities of the ADI and its subsidiaries, including:

(i) allocating to accountable persons responsibility for all parts or aspects of the relevant group of bodies corporate that is constituted by the ADI and its subsidiaries; and

(ii) reporting directly to the Board of the ADI;

(c) senior executive responsibility for management of the ADI ' s financial resources;

(d) senior executive responsibility for overall risk controls and/or overall risk management arrangements of the ADI;

(e) senior executive responsibility for management of the ADI ' s operations;

(f) senior executive responsibility for information management, including information technology systems, for the ADI;

(g) senior executive responsibility for management of the ADI ' s internal audit function;

(h) senior executive responsibility for management of the ADI ' s compliance function;

(i) senior executive responsibility for management of the ADI ' s human resources function;

(j) senior executive responsibility for management of the ADI ' s anti-money laundering function.

(4)
APRA may, by legislative instrument, determine a responsibility for the purposes of subparagraph (2)(b)(ii) (other than a responsibility set out in subsection (3)).

(5)
Subsection (2) does not apply in relation to a position that a person holds in an Australian branch of a foreign ADI.

Head of an Australian branch of a foreign ADI

(6)
Without limiting subsection (1), an individual is also an accountable person , of an ADI that is a foreign ADI, if he or she has senior executive responsibility for the conduct of all the activities of an Australian branch of the foreign ADI.

S 37BA inserted by No 5 of 2018, s 3 and Sch 1 item 1, effective 1 July 2018. For application provisions, see note under Pt IIAA heading.