Banking Act 1959

Part II - Provisions relating to the carrying on of banking business  

Division 3 - Governance  

SECTION 23   APRA may remove a director or senior manager of an ADI or authorised NOHC  

(1)  


This section applies to a person who is:


(a) a director or senior manager of an ADI (other than a foreign ADI); or


(b) a senior manager of the Australian operations of a foreign ADI; or


(c) a director or senior manager of an authorised NOHC.

(2)  
APRA may direct (in writing) that the ADI or authorised NOHC remove the person from the position if APRA is satisfied that the person:


(a) either:


(i) for a person who is a disqualified person only because he or she was disqualified under section 21 - is disqualified from being or acting as a director or senior manager of the ADI or NOHC; or

(ii) otherwise - is a disqualified person; or


(b) does not meet one or more of the criteria for fitness and propriety set out in the prudential standards.

(3)  
Before directing an ADI or authorised NOHC to remove a person, APRA must give written notice to:


(a) the person; and


(b) the ADI or NOHC;

giving each of them a reasonable opportunity to make submissions on the matter.

(4)  
If a submission is made to APRA in response to the notice, APRA must have regard to the submission and may discuss any matter contained in the submission with such persons as it considers appropriate for the purpose of assessing the truth of the matter.

(5)  
A notice given under subsection (3) to a person, an ADI or an authorised NOHC must state that any submissions made in response to the notice may be discussed by APRA with other persons as mentioned in subsection (4).

(6)  
A direction takes effect on the day specified in it, which must be not earlier than 7 days after it is signed.

(7)  
If APRA directs an ADI or authorised NOHC to remove a person, APRA must give a copy of the direction to the person and to the ADI or NOHC.

(7A)  
An ADI or authorised NOHC must comply with a direction under this section.

Note:

For enforcement of the direction, see section 11CG.

(7B)  
The power of an ADI to comply with a direction under this section may be exercised on behalf of the ADI as set out in the table:


Table
Table
Power to comply with a direction
Item Who may exercise the power How the power may be exercised
1 The chair of the board of directors of the ADI by signing a written notice.
2 A majority of the directors of the ADI (excluding any director who is the subject of the direction) by jointly signing a written notice.

(7C)  
The power of an authorised NOHC to comply with a direction under this section may be exercised on behalf of the NOHC as set out in the table:


Table
Table
Power to comply with a direction
Item Who may exercise the power How the power may be exercised
1 The chair of the board of directors of the NOHC by signing a written notice.
2 A majority of the directors of the NOHC (excluding any director who is the subject of the direction) by jointly signing a written notice.

(7D)  
Subsections (7B) and (7C) do not, by implication, limit any other powers of an ADI or authorised NOHC to remove a person.

(8)  
Part VI applies to a direction given by APRA under this section.




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