Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2016

Administered by Department of the Treasury

Legislation au F2016L00093 Not in force Legislative Instrument

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Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2016

EXPLANATORY STATEMENT

Prepared by the Australian Prudential Regulation Authority (APRA)

Australian Prudential Regulation Authority Act 1998, section 57

Under paragraph 57(2)(b) of the Australian Prudential Regulation Authority Act 1998 (the Act), APRA may determine, by legislative instrument, that all or a specified part of relevant reporting documents of a specified kind contain, or do not contain, confidential information.

On 28 January 2016, APRA made Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2016 (the instrument) which determines that specified parts of the superannuation reporting standards listed in the instrument do not contain confidential information.

The instrument commences on the date of registration on the Federal Register of Legislative Instruments.

  1. Background

Subsection 56(2) of the Act provides that it is an offence to disclose “protected information”[1] or a “protected document”[2], being information or documents provided to APRA under a “prudential supervision framework law”[3].  The Financial Sector (Collection of Data) Act 2001 (FSCOD Act) is a prudential supervision framework law, and the superannuation reporting forms listed in the instrument, having been provided to APRA under that Act, are protected documents.

Subsection 56(5C) of the Act provides that it is not an offence to disclose information in a reporting document given to APRA under section 13 of the FSCOD Act where APRA has made a determination under section 57 of the Act in relation to the information.

Under subsections 57(2) and (4) of the Act APRA may, by legislative instrument, determine that:

(a)  all or a specified part of a relevant reporting document does not contain confidential information; or

(b)  all or a specified part of relevant reporting documents of a specified kind do not contain confidential information,

if, taking into account any representations made under subsection 57(3) in relation to the document or documents of that kind, APRA considers that the benefit to the public from the disclosure of the document or documents, or information contained in the document or documents, outweighs any detriment to commercial interests that the disclosure may cause.

Under subsection 57(3) of the Act, APRA must not make a determination under subsection 57(2) unless APRA gives interested parties for the determination a reasonable opportunity to make representations as to whether or not the relevant reporting document contains, or relevant reporting documents of that kind contain, confidential information.

The consultation undertaken by APRA for the purposes of subsection 57(3) is discussed below.

2.      Purpose and Operation of the Instrument 

The determination provides that certain information given to APRA under the reporting standards listed in the instrument is non-confidential and consequently its release by APRA will be permitted under subsection 56(5C) of the Act.  The information will form the basis of statistical publications which will be of use to regulators, policymakers, industry, researchers, analysts and other interested parties. 

3.      Consultation

 

In accordance with the requirements for consultation under section 57 of the APRA Act, APRA released a discussion paper in May 2015 that proposed that certain superannuation entity data[4] be determined non-confidential, as well as changes to its statistical publications. The discussion paper provided all affected entities an opportunity to make representations on the proposed determination. The consultation period ended on 9 July 2015.

 

APRA received submissions from four entities and representative associations during the consultation. These submissions broadly supported the superannuation publications and three submissions supported the proposals to make superannuation data non-confidential. However, one submission suggested that making the proposed data non-confidential would cause detriment to commercial interests.

 

APRA considers that, after taking affected entities’ and representative associations’ representations into account, there is a strong public interest in the publication of the information in the determination, and this outweighs any potential detrimental effect to the commercial interests of superannuation entities.

 

4.      Statement of compatibility with human rights prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

A Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is provided at Appendix A to this Explanatory Statement.


Appendix A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Financial Sector (Collection of Data) (confidentiality) determination No. 1 of 2016

 

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instrument listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (HRPS Act).

Overview of the Legislative Instrument

The purpose of making this Legislative Instrument is to enable APRA to disclose, including by way of publication in industry bulletins, certain information provided to APRA by trustees of superannuation entities under certain reporting standards.  This information will be of use to inter alia, regulators, policymakers, industry, researchers and analysts.

Human rights implications

APRA has assessed the Legislative Instrument against the international instruments listed in section 3 of the HRPS Act and determined that only Article 17 of the International Covenant on Civil and Political Rights (ICCPR) is conceivably of relevance to the Legislative Instrument.

Article 17 of the ICCPR prohibits the arbitrary or unlawful interference with a person’s privacy, family, home and correspondence, and attacks on reputation. Article 17 is exclusively concerned with prohibiting interference with the privacy and/or reputation of individual persons. It does not extend to the privacy and/or reputation of corporate entities.

The Legislative Instrument will facilitate the disclosure of specific information provided to APRA by RSE licensees in accordance with certain reporting standards. It does not involve the disclosure of information directly relating to individual persons. Further, APRA reviews all releases of data received under reporting standards to ensure that no information pertaining to an individual person can be deduced from the data.

Consequently, the Legislative Instrument does not engage any of the applicable rights or freedoms recognised or declared in the international instruments listed in section 3 of the HRPS Act. Accordingly, in APRA’s assessment, the Legislative Instrument is compatible with human rights.

 

 

[1] Defined in s.56(1) of the Act.

[2] Defined in s.56(1) of the Act.

[3] Defined in s.3(1) of the Act.

[4]   Where data are provided under the Financial Sector (Collection of Data) Act 2001

Overview

The Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2016, made under the Australian Prudential Regulation Authority Act 1998, was enacted to address the issue of determining the confidentiality of certain information provided to the Australian Prudential Regulation Authority (APRA) by trustees of superannuation entities. This determination aims to facilitate the disclosure of specific information by APRA, ensuring it is useful for regulators, policymakers, industry, researchers, and analysts, while also balancing the commercial interests of superannuation entities. The determination specifies that certain parts of superannuation reporting standards do not contain confidential information, allowing for their disclosure under certain conditions. The determination was made following a consultation period where APRA considered the submissions from affected entities, and it is compatible with human rights as it does not involve the disclosure of information directly relating to individual persons. The determination was made by APRA in accordance with section 57 of the Australian Prudential Regulation Authority Act 1998, which empowers APRA to decide on the confidentiality of information provided under the prudential supervision framework laws. The policy objective is to enable the release of information that serves the public interest, while taking into account any detriment to commercial interests. The determination aims to provide transparency and facilitate the use of data for various stakeholders without compromising the privacy and reputation of individual persons or corporate entities.

Scope and Application

The Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2016 pertains to the Australian Prudential Regulation Authority Act 1998 and applies to specific parts of superannuation reporting standards listed within the determination. This legislative instrument was issued by the Australian Prudential Regulation Authority (APRA) to clarify that certain specified information in superannuation reports, provided to APRA under the Financial Sector (Collection of Data) Act 2001, does not constitute confidential information. Consequently, APRA is permitted to disclose this information under the Act, which is intended to benefit the public by allowing the information to be used in statistical publications and reports accessible to regulators, policymakers, industry, researchers, and analysts. This determination is applicable across Australia, given APRA's jurisdiction over prudential supervision in the financial sector. The instrument allows APRA to release the specified non-confidential information, which is critical for its statistical publications and other public uses, while ensuring that any sensitive or confidential data remains protected. The instrument does not specify any exclusions or exemptions but requires APRA to consult with interested parties before making such determinations, ensuring a balanced consideration of commercial interests and public benefits.

Key Provisions

The Australian Prudential Regulation Authority (APRA) made a confidentiality determination on 28 January 2016, establishing that specified parts of certain superannuation reporting standards do not contain confidential information (section 2). This determination was made under section 57 of the Australian Prudential Regulation Authority Act 1998 (APRA Act), allowing APRA to decide whether certain information provided under a prudential supervision framework law is confidential. In this instance, the superannuation reporting forms provided to APRA under the Financial Sector (Collection of Data) Act 2001 are considered protected documents. However, the determination specifies that these documents do not contain confidential information, thereby permitting APRA to disclose this information in line with subsection 56(5C) of the APRA Act. The obligations imposed by the determination primarily require APRA to consult with interested parties before making such a confidentiality determination. Under section 57(3) of the APRA Act, APRA must provide a reasonable opportunity for affected entities to make representations on whether the information contains confidential information. In this case, APRA released a discussion paper in May 2015, proposing that certain superannuation entity data be determined non-confidential and changes to its statistical publications. The consultation period ended on 9 July 2015, and APRA received submissions from four entities and representative associations. While most submissions supported the proposals, one submission suggested potential detriment to commercial interests. After considering these representations, APRA concluded that the public benefit of disclosing the information outweighed any potential commercial detriment. Under the APRA Act, there are penalties for disclosing protected information or documents, which are defined in section 56(1) of the Act. However, the determination ensures that the information specified is not considered confidential, thus exempting it from these penalties. Nevertheless, any breach of the conditions or improper disclosure of information that was intended to remain confidential could lead to legal consequences. The APRA Act provides for enforcement actions, including fines and potential imprisonment, for those who misuse or improperly disclose protected information. However, these penalties would not apply to the information specified in this determination as it is explicitly stated to be non-confidential. APRA has also ensured that the determination is compatible with human rights, as required by the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement of Compatibility indicates that the Legislative Instrument does not engage with any applicable rights or freedoms under the relevant international instruments, such as Article 17 of the International Covenant on Civil and Political Rights, which pertains to individual privacy and reputation. Since the information in question does not relate to individual persons, APRA concludes that the determination is compatible with human rights and does not infringe on the privacy or reputation of corporate entities.

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