While the Financial Accountability Regime Bill 2023 (Cth) (Bill)is still before the Senate, APRA and ASIC (Regulators) have already released draft Regulator rules for consultation. The Regulator rules provide some guidance on what APRA considers a key function for the purposes of assigning responsibility to ‘accountable persons’.
If passed by Parliament, the Bill will establish the long awaited Financial Accountability Regime (FAR), following two attempts at its implementation by the Morrison and Albanese Governments in 2021 and 2022 respectively. The 2022 bill was withdrawn in September 2022 and replaced with the current bill. See our commentary on the previous bills here. The FAR will replace the Banking Executive Accountability Regime (BEAR) and establish a regime that extends strengthened responsibility and accountability requirements into the banking, insurance and superannuation industries.
Although the current consultation documents are directed at authorised deposit-taking institutions (ADIs), APRA has called on general insurers to review these documents ahead of industry consultation. APRA has indicated that the concept of ‘key functions’ and the Regulator rules will apply across regulated entities.
What are the Regulator rules?
Insurers will for the first time need to grapple with the concept of an ‘accountable person’ within an entity. An ‘accountable person’ is a person who has actual or effective senior executive responsibility for the management or control of the entity (or of a significant or substantial part of the entity’s operations, or group’s operations (if relevant)).
Section 40 of the Bill requires the Regulator to establish and maintain a register of accountable persons, with section 40(4)(g) granting the Regulators the power to prescribe certain information to be included in the register.
The proposed Regulator rules prescribe the information that must be provided for each ‘accountable person’. The prescribed information covers personal identification details, employment status, responsibility for ‘ADI Key Functions’ and reporting lines. The full list of information can be accessed here.
What is an ‘ADI Key Function’?
Of particular interest in the current consultation is the list of proposed ‘ADI Key Functions’. The draft rules contain a list of key functions covering items such as:
- capital management;
- conduct risk management;
- financial services regulatory engagement;
- product origination;
- product design and distribution obligations;
- risk culture;
- scam management;
- training; and
- whistleblower policy and process.
The Regulators have also commented on the full list of key functions but it appears these descriptions are in the form of regulatory guidance and not intended to form part of the legislative instrument. The commentary can be accessed here.
While this list of key functions is proposed to apply to ADIs, APRA has called on general insurers to consider this concept ahead of industry consultation. Each key function must be assigned to at least one accountable person in the FAR register. These key functions are intended to help the Regulators assess whether accountable entities are adequately assigning accountability across all operational areas to their accountable persons, and are considerably broader than the functions prescribed by BEAR.
To facilitate the transition from the BEAR to the FAR, the Regulators have also prepared transitional rules which prescribe additional information for ADIs to submit to the Regulators. However, as the BEAR does not extend beyond the banking industry, the transitional rules do not apply to insurers.
What should insurers do?
It is not too early for insurers to start preparing for the implementation of FAR. A well planned project investing in early engagement with relevant stakeholders will ensure implementation is not unnecessarily plagued by disagreement, complications or delays. This is particularly important for global insurers where reporting lines and processes may extend beyond the local APRA/ASIC regulated entity.
In terms of the Regulator consultation process, the draft Regulator rules released by APRA and ASIC are directed at ADIs. The Regulators will consult on the list of key functions for insurance and superannuation entities in due course but also suggest that such entities should consider the concept of key functions and review the Regulator rules, as the list of data items for inclusion in the register (which are set out in the Regulator rules) are relevant to all accountable entities.
While the Senate is currently sitting and the Bill is listed in the Senate’s Order of Business, it is not clear whether the Bill will be passed. We will keep readers updated.