Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2010

Administered by Department of the Treasury

Legislation au F2010L00139 Not in force Legislative Instrument

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Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2010

Information provided by trustees under Reporting Standards SRS 200.0, SRS 210.0, SRS 210.1, SRS 230.0, SRS 240.0 and SRS 250.0

EXPLANATORY STATEMENT

Prepared by the Australian Prudential Regulation Authority (APRA)

Australian Prudential Regulation Authority Act 1998 (APRA Act), s 57

Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2010 (Determination No.1), made under section 57 of the APRA Act on 15 January 2010, is APRA’s second determination in relation to information provided under Reporting Standards SRS 200.0 (2005), SRS 210.0 (2005), SRS 210.1 (2005), SRS 230.0 (2005), SRS 240.0 (2005) and SRS 250.0 (2005), and the predecessor reporting standards.

  1. Background

Subsection 56(5C) of the APRA Act provides that it is not an offence against s 56(2) of that Act (APRA’s secrecy provision) to disclose information in a reporting document given to APRA under s 13 of the Financial Sector (Collection of Data) Act 2001 (Collection of Data Act) where APRA has determined, under s 57, that the document does not contain confidential information.

Section 57 of the APRA Act gives APRA the power to determine whether a document given under s 13 of the Collection of Data Act contains confidential information. The section provides that before doing so APRA must give relevant entities or bodies, or their representative association, a reasonable opportunity to make representations as to whether information of the kind contained in the document is confidential, and APRA must take such representations into account (the consultation undertaken is discussed below).

2.            Purpose of the instrument

The purpose of Determination No. 1 is to enable APRA to disclose, including by way of publication, certain information provided to APRA by trustees of superannuation entities.

3.            Operation of the instrument

Determination No.1 provides that certain information (described below) given to APRA under any of the following reporting standards, or any prior reporting standard of the same name and number, made under s 13 of the Collection of Data Act (collectively, Reporting Standards) is non-confidential:

  • SRS 200.0 (2005) Statement of Financial Performance made under Financial Sector (Collection of Data) determination No. 51 of 2005;
  • SRS 210.0 (2005) Statement of Financial Position made under Financial Sector (Collection of Data) determination No. 52 of 2005;
  • SRS 210.1 (2005) Selected Disclosure of Investments made under Financial Sector (Collection of Data) determination No. 53 of 2005;
  • SRS 230.0 (2005) Transactions with Associated Entities made under Financial Sector (Collection of Data) determination No. 56 of 2005;
  • SRS 240.0 (2005) Membership Profile made under Financial Sector (Collection of Data) determination No. 57 of 2005; and
  • SRS 250.0 (2005) Superannuation Entity Profile made under Financial Sector (Collection of Data) determination No. 41 of 2005.

The Reporting Standards apply to all superannuation entities other than small APRA funds, self-managed superannuation funds and single member approved deposit funds (relevant superannuation entities).

Determination No. 1 applies to reporting documents (collectively, Reporting Documents) that relate to a reporting period ending on or after 1 January 2004 and before 1 October 2009, which are received by APRA on or after 14 August 2009 and before the date of the Determination under:

  • reporting form SRF 200.0, under Reporting Standard SRS 200.0;
  • reporting form SRF 210.0, under Reporting Standard SRS 210.0;
  • parts A, C & E of reporting form SRF 210.1, under Reporting Standard SRS 210.1;
  • reporting form SRF 230.0, under Reporting Standard SRS 230.0;
  • reporting form SRF 240.0, under Reporting Standard SRS 240.0; or
  • reporting form SRF 250.0, under Reporting Standard SRS 250.0,

excluding the following items of information:

  • information reported about a pooled superannuation trust (PST); and
  • personal information, within the meaning of the Privacy Act 1988 (Privacy Act).

Public access to the information covered by Determination No. 1 would facilitate comparison and further analysis of the expected risks and returns associated with individual superannuation entities and assist members to assess information provided, or representations made, by trustees. The information is also expected to assist trustees in evaluating the effectiveness of long-term investment strategies. Over time, this is expected to improve both the public understanding of, and the level of competition within, the Australian superannuation industry.

4.            Consultation

APRA released the discussion paper Fund level disclosure from the APRA Superannuation statistics collection on 20 November 2008. The discussion paper outlined the issues and questions to be resolved in creating a superannuation fund-level publication and sought comments and suggestions on the data items to be included (i.e., a reference table and also compilation tables). The discussion paper also stated that APRA “nevertheless intends to write to all potentially affected trustees, inviting them to nominate any data items from our existing statistical collections which might be confidential”.

On 14 May 2009 APRA issued a consultation letter to the 263 trustees of the relevant superannuation entities and 16 other parties (including industry bodies and professional associations). The letter advised that APRA proposed to determine the Reporting Documents to be non-confidential. The consultation period closed on 12 June 2009.

During the consultation period, APRA also contacted the current trustees of all relevant superannuation entities and provided them each with the opportunity to review data given to APRA in the Reporting Documents in relation to the respective superannuation entities for reporting periods ending 2004, 2005, 2006, 2007 and 2008. The trustees were requested to resubmit the Reporting Documents by 19 June 2009 using APRA’s Direct to APRA (D2A) system if errors were identified.

Nineteen submissions were received by APRA in regards to the proposed determination of non-confidentiality. The submissions were made by trustees as well as industry bodies and service providers (such as custodians).

APRA, after consideration of the submissions, modified the scope of the proposed determination of non-confidentiality to exclude the following items of information contained in the Reporting Documents:

  • information reported about a PST; and
  • personal information, within the meaning of the Privacy Act.

 

Overview

The Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2010, made under section 57 of the Australian Prudential Regulation Authority Act 1998 (APRA Act) on 15 January 2010, aims to address the issue of confidentiality of information provided by trustees of superannuation entities to the Australian Prudential Regulation Authority (APRA). This determination was introduced to enable APRA to disclose, including by way of publication, certain information provided to it by trustees of superannuation entities. The determination applies to information provided under specific reporting standards, namely SRS 200.0, SRS 210.0, SRS 210.1, SRS 230.0, SRS 240.0, and SRS 250.0, and the predecessor reporting standards, in relation to reporting periods ending on or after 1 January 2004 and before 1 October 2009. APRA, as the enacting body, was mandated to consult with relevant entities or bodies, or their representative association, to make this determination. The purpose of this determination is to facilitate the comparison and further analysis of expected risks and returns associated with individual superannuation entities, assist members to assess information provided or representations made by trustees, and to evaluate the effectiveness of long-term investment strategies. Over time, this is expected to improve public understanding and competition within the Australian superannuation industry. APRA undertook a consultation process with trustees and other relevant parties to ensure that the determination did not expose confidential information. As a result of the consultation, APRA modified the scope of the determination to exclude information reported about a pooled superannuation trust and personal information within the meaning of the Privacy Act 1988.

Scope and Application

The Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2010 applies to information provided by trustees of superannuation entities under specific reporting standards, namely SRS 200.0, SRS 210.0, SRS 210.1, SRS 230.0, SRS 240.0, and SRS 250.0. This legislation, made under section 57 of the Australian Prudential Regulation Authority Act 1998, aims to clarify that certain information provided in reporting documents to APRA is non-confidential and can be disclosed or published. The Determination No. 1 specifically excludes information reported about a pooled superannuation trust and personal information as defined by the Privacy Act 1988. This legislation primarily applies to trustees of relevant superannuation entities, which are all superannuation entities except small APRA funds, self-managed superannuation funds, and single member approved deposit funds. The jurisdictional reach of this determination is federal, as it operates under the Commonwealth laws and regulations. APRA consulted with trustees and other relevant parties before making this determination, allowing them to make representations regarding the confidentiality of the information. The determination applies to reporting documents related to reporting periods ending on or after 1 January 2004 and before 1 October 2009, received by APRA on or after 14 August 2009.

Key Provisions

The Australian Prudential Regulation Authority (APRA) has issued the Australian Prudential Regulation Authority (Confidentiality) Determination No. 1 of 2010, which identifies specific information provided under certain Reporting Standards as non-confidential. This determination, under section 57 of the Australian Prudential Regulation Authority Act 1998 (APRA Act), applies to Reporting Standards SRS 200.0, SRS 210.0, SRS 210.1, SRS 230.0, SRS 240.0, and SRS 250.0, and the predecessor reporting standards. The key sections of the Determination are section 2, which provides the purpose of the instrument, and section 3, which specifies the operation of the instrument and the conditions under which the information is considered non-confidential. These sections outline that certain information given to APRA under the specified Reporting Standards is non-confidential and can be disclosed, including by way of publication, by APRA. The information pertains to superannuation entities other than small APRA funds, self-managed superannuation funds, and single member approved deposit funds, and covers reporting periods ending on or after 1 January 2004 and before 1 October 2009. The Determination imposes obligations on trustees of superannuation entities to ensure that the information they provide to APRA under the specified Reporting Standards is accurate and complete. Trustees must submit the required reporting documents by the specified deadlines and, if errors are identified, resubmit the documents using APRA’s Direct to APRA (D2A) system. Additionally, APRA is required to consult with relevant entities or bodies, or their representative association, before making a determination on the confidentiality of information. This consultation process is designed to allow stakeholders to provide input on whether the information contained in the reporting documents is confidential. There are no explicit offences or penalties outlined in the Determination itself for breach of its provisions. However, breaches of the APRA Act, including the provisions related to confidentiality, can lead to civil or criminal consequences. Under the APRA Act, a person who contravenes certain provisions can be subject to penalties, including fines. The specific penalties depend on the nature and severity of the contravention. For example, section 56(2) of the APRA Act provides that a person who discloses confidential information is liable to a penalty, and the maximum penalty for such an offence can be significant, reflecting the importance of maintaining confidentiality in the financial sector. In summary, the Australian Prudential Regulation Authority (Confidentiality) Determination No. 1 of 2010 aims to facilitate the disclosure of certain non-confidential information provided by trustees under specified Reporting Standards. It imposes clear obligations on trustees to ensure the accuracy and completeness of the information provided to APRA and mandates a consultation process to consider stakeholder views on confidentiality. While the Determination itself does not specify penalties for breach, contraventions of the APRA Act can result in substantial civil or criminal penalties, underscoring the importance of compliance with these provisions.

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