Posted: 29 Jul. 2021 5 min. read

Accountability for all is not too FAR

The Banking Executive Accountability Regime (“BEAR”) has applied to large authorised deposit-taking institutions (“ADIs”) in Australia since July 2018 and small and medium ADIs since July 2019. In January 2020, following the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, Treasury issued a Proposal Paper which set out the intention to implement recommendations 3.9, 4.12, 6.6, 6.7 and 6.8 to extend BEAR to all APRA-regulated entities and provide joint administration to ASIC as the conduct regulator through the introduction of the Financial Accountability Regime (“FAR").

The purpose of FAR is to implement a strengthened responsibility and accountability framework for directors and the most senior and influential executives in financial services organisations. The regime is intended to complement and reinforce the existing regulatory framework, rather than replace it or create a substantial new set of obligations and mandatory requirements.

Almost 18 months on, Treasury has released the Exposure Draft Legislation (“ED”) (together with the Draft Explanatory Materials, Information Paper on Joint Administration, and Policy Proposal Paper on Prescribed Responsibilities and Positions). We have set out the key elements of the regime below.

Implementation timeframes

Treasury has stipulated the following implementation timeframes:

  • ADIs or authorised non-operating holding companies (“NOHCs”) of an ADI will have until 1 July 2022 (or 6 months after commencement, whichever is the latter) to transition to FAR; and
  • All other APRA-regulated entities will have until 1 July 2023 (or 18 months, whichever is the latter) to implement FAR.

The government has also previously indicated that it will extend FAR to ASIC-regulated entities, however we await further information as to how these entities will be brought into the regime and when.

Key elements of FAR

Accountable entities:

The regime imposes strengthened obligations on certain entities in the banking, insurance and superannuation sectors. It does so by regulating accountable entities, noting that some corporate groups may have multiple accountable entities. These accountable entities generally include those that are licensed or authorised by APRA to carry on banking, insurance or superannuation business. More specifically:

‘Significant related entities’

An accountable entity also holds obligations in relation to its significant related entities. For entities other than RSE licensees, this will generally include a subsidiary that has a material and substantial effect on the accountable entity and the ED provides factors to consider when determining this. For RSE licensees, a wider variety of entities may be captured, depending on the RSE licensee’s operating structure and control relationships. This recognises the variety of structures in the industry. A connected entity of a RSE licensee (such as a general insurer or a controlled investment company) could have a material and substantial impact on the RSE licensee. This requires some careful attention and may lead to a larger AP group than first anticipated.

Accountable persons (“APs”):

The conduct of the accountable entity is controlled by its directors and most senior and influential executives. These will typically be the individuals that are identified as APs. An individual will be subject to the regime if they are an AP of an accountable entity. An AP will be defined using a prescriptive element and a principles-based element.

‘Prescriptive element’

The prescriptive element considers whether the individual holds a listed position in or relating to the entity. That is, a ‘prescribed responsibility’ as set out in the list of prescribed responsibilities and positions. In this document, Treasury details a long list of prescribed responsibilities and positions including, for example, oversight of the accountable entity, management or control of the business activities of the accountable entity, management of the accountable entity’s financial resources, risk controls and risk management, operations, anti-money laundering, and end-to-end product management. It provides additional specific prescribed responsibilities for insurers, RSE licensees, Australian branches of foreign accountable entities and authorised/registered NOHCs. Given the wide reach of some of the responsibilities whereby multiple AP may have accountability, joint accountability (whereby they will be jointly and severally liable for related breaches) may be unavoidable.

‘Principles-based element’

This general-principle test considers whether the individual:

  • Holds a position in the accountable entity or a significant related entity; and
  • Has senior executive responsibility for management or control of the accountable entity or a significant or substantial part or aspect of the operations of the accountable entity or its group of significant related entities.

It is worth noting that one person can be an AP of multiple accountable entities within the same group and can hold multiple prescribed responsibilities or positions.

Accountability obligations:

FAR establishes accountability obligations on both accountable entities and accountable persons which relate to conduct and prudential matters. These are set out below:

Other obligations

The accountable entity has three further areas of obligations in which they must abide.

i) Deferred remuneration obligations

Under the regime, accountable entities and their significant related entities must defer at least 40% of the variable remuneration of each of their APs  for a minimum of four years (if the variable remuneration is greater than $50,000 AUD) and may reduce the amount of variable remuneration that vests due to a breach of an AP’s FAR obligations. This reduction should be proportionate to the failure to comply on the AP’s part. 

The regime also requires accountable entities to have a remuneration policy stipulating that variable remuneration may be reduced where there has been a breach of accountability obligations, that reduced variable remuneration must not be paid, and that reasonable steps are taken to ensure their significant related entities comply.

ii) Notification obligations

There are strict requirements for an accountable entity to provide certain information to the regulators about the entity and its APs. All accountable entities must comply with the core notification obligations, while a select subset (those that fall within the below table) are required to comply with the enhanced notification obligations. It is worth noting that, where an accountable entity within a corporate group meets the enhanced notification threshold, all other accountable entities within that group (including any licensed NOHCs) will need to comply with the enhanced notification obligations irrespective of whether they meet the enhanced notification threshold.

iii)  Key personnel obligations

Accountable entities are required to ensure that the responsibilities of their APs collectively cover all parts or aspects of their business including the significant related entities. This includes:

  • Having APs who are responsible for all the prescribed responsibilities and positions;
  • Not having APs for responsibilities which have been excluded by the regulators;
  • Registering an AP with the regulators prior to them occupying the role; and
  • Ensuring that the AP is not disqualified by the regulators.

It is worth noting that APs who are temporarily filling a foreseen or unforeseen vacancy have up to 90 days before they are required to be registered with the regulators. They will still be considered an AP during this timeframe, however they will not be subject to the deferred remuneration requirements.

Penalties

As anticipated, significant civil penalties will apply to accountable entities in breach of their obligations under FAR. The maximum penalty amount for a contravention is the greater of:

  • 50,000 penalty units (currently $11.1 million AUD);
  • If the Court can determine it – the benefit derived or detriment avoided because of the contravention, multiplied by three; and
  • 10 per cent of the annual turnover of the body corporate, but to a maximum monetary value of 2.5 million penalty units (currently $555 million AUD).

What should entities do now?

Respond to the consultation (quickly!)

Interested parties are invited to comment on the ED by 13 August 2021.

  • Public consultation on the transitional and consequential provisions is expected to commence in August/September; and
  • Public consultation on the list of PRs and positions and the enhanced notification thresholds is expected to commence in September/October.

Get your implementation programs started

If your FAR project is well underway, there are advantages to pushing forward and achieving FAR readiness in advance of the legislation “go-live” date including benefits for organisation culture and maintaining momentum, and business efficiencies. If you’ve not yet commenced your FAR project, you can get underway with a number of “no regrets” activities now in order to prepare for FAR implementation. This includes:

  • Briefing Boards and Senior Leaders on the likely reach of FAR, and the learnings from both implementation of BEAR by ADIs, and also the UK Senior Managers & Certification Regime (the UK pre-curser to BEAR). This is a personal accountability regime, so they need to be regularly and actively engaged in how the reform and implementation is progressing.
  • Consider how FAR can help drive cultural improvements, such as through emphasising individual accountability, or the alignment with the organisation’s values. This is because FAR isn’t just a compliance exercise; it’s about uplifting personal accountability and conduct across the industry.
  • Identifying the entities that will be directly regulated by FAR, and any significant related entities (including subsidiaries or connected entities) that could be impacted by it.
  • Identifying the likely individuals who will be APs.
  • Starting to define what those APs are responsible for through the preparation of Accountability Statements.
  • Supporting those APs through development of reasonable steps frameworks and guidance, and reasonable steps assessments and activities, including scenario testing, particularly given the importance emphasised in APRA’s post-implementation review of BEAR.
  • Considering how the entity or entities impacted will approach their own reasonable steps, through activities such as reviewing and improving governance, risk, controls and other key frameworks.
  • Considering how strong and effective subsidiary governance and oversight of significant related entities is, and identifying improvements.
  • Considering potential changes to remuneration, including how CPS 511 on remuneration may interact with FAR, as well as the interplay between the prescribed responsibilities and other key regulatory change agenda items.

How can Deloitte help?

Deloitte has assisted with the implementation and post-implementation of BEAR across large, medium and small ADIs since late 2017. We are also already supporting many clients, including life insurers, general insurers, wealth managers and RSE licensees, with implementation of the FAR. If you require implementation support, please reach out.

Visit our Accountability Regime homepage here and read more about the changes from BEAR to FAR here.

Get in touch

Rosalyn Teskey

Rosalyn Teskey

Partner, Audit & Assurance

Rosalyn is a partner in Deloitte's Melbourne office in the Governance, Regulation and Conduct practice. She specialises in supporting firms to design and assess frameworks to treat customers fairly, including the development of conduct, product governance, sales practices and complaints handling frameworks.

Georgia Amery

Georgia Amery

Senior Manager, Audit & Assurance

Georgia is a Senior Manager in the Governance, Regulation and Conduct practice based in Brisbane. She specialises in supporting clients across the financial services sector in designing, implementing and reviewing frameworks, policies and procedures focused on preventative conduct and promoting good customer outcomes.

More about the authors

Erin Kerr

Erin Kerr

Senior Manager, Audit & Assurance

Erin is a Senior Manager in Deloitte’s Melbourne office in the Governance, Regulation and Conduct practice. She specialises in supporting clients across the financial services sector in designing, implementing and reviewing frameworks, policies and procedures focused on preventative conduct and promoting good customer outcomes. Erin’s key areas of practice are accountability regimes and regulatory change.

Alana Wessels

Alana Wessels

Director, Audit & Assurance

Alana is a Director in the Governance, Regulation and Conduct practice based in Brisbane. She has a broad range of advisory experience supporting financial services clients in areas such as providing advice around regulatory support, assisting clients with the implementation of new regulation, undertaking prudential compliance internal audits and assessing compliance frameworks