Australian Prudential Regulation Authority (confidentiality) determination
No. 1 of 2021
Information provided by authorised deposit-taking institutions under Reporting Standard ARS 720.6
EXPLANATORY STATEMENT
Prepared by the Australian Prudential Regulation Authority (APRA)
Australian Prudential Regulation Authority Act 1998, section 57
Under section 57 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 21 January 2021, APRA made Australian Prudential Regulation Authority (confidentiality) determination No. 1 of 2021 (the instrument) which determines that certain information in reporting documents provided to APRA under Reporting Standard ARS 720.6 ABS/RBA Securities on Issue (ARS 720.6), is not confidential.
The instrument commences on the date of registration on the Federal Register of Legislation.
- 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 regulation framework law”[3].
The Financial Sector (Collection of Data) Act 2001 (FSCOD Act) is a prudential supervision framework law, and the reporting form listed in the instrument, having been provided to APRA under that Act, is a protected document. 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 contains, or does not contain, confidential information; or
(b) all or a specified part of relevant reporting documents of a specified kind contains, or 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(s) or information outweighs any detriment to commercial interests that the disclosure may cause.
2. Purpose and operation of the instrument
The instrument provides that certain information given to APRA in Reporting form 720.6 ABS/RBA Securities on Issue (ARF 720.6) under ARS 720.6, is non-confidential.
The information determined non-confidential relates to negotiable certificates of deposit issued by authorised-deposit taking institutions (ADIs).
The information will be disclosed by APRA under subsection 56(5C) of the Act to form the basis of APRA’s statistical publications, primarily APRA’s Monthly ADI Statistics. The statistical publications will be of use to regulators, policymakers, industry, researchers, analysts and other interested parties.
3. Consultation
APRA conducted consultation for this instrument. APRA commenced consultations in relation to whether specified information in ARS 720.6 should be determined non-confidential by letter to ADIs, and their respective representative bodies, on 29 September 2020.[4] Submissions received by APRA were supportive of APRA publishing this information.
APRA considers that determining this information non-confidential improves the transparency of the ADI industry and is consistent with government open data policies. The negotiable certificates of deposit data will also assist the smooth functioning of related markets. APRA considers that the benefit from the disclosure would outweigh any potential detriment to the commercial interests that disclosure might cause. On that basis, APRA has determined that the specified information collected under the Reporting Standards to be non-confidential.
4. Statement of compatibility 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 Attachment A to this Explanatory Statement.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Australian Prudential Regulation Authority (confidentiality) determination
No. 1 of 2021
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (HRPS Act).
Overview of the Legislative Instrument
This Legislative Instrument enables APRA to disclose information relating to negotiable certificates of deposits issued by ADIs. The information will be of use to regulators, policymakers, industry, researchers, analysts and other interested parties.
Human rights implications
APRA has assessed this 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 this Determination.
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.
This Legislative Instrument will facilitate the disclosure of specific information to APRA by ADIs in accordance with ARS 720.6. This Legislative Instrument 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 this 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, this determination is compatible with human rights.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
[1] Defined in subsection 56(1) of the Act.
[2] Defined in subsection 56(1) of the Act.
[3] Defined in subsection 3(1) of the Act.
[4] See ‘Consultation on confidentiality of key ADI metrics’ Letter to all ADIs dated 29 September 2020: https://www.apra.gov.au/consultation-on-confidentiality-of-key-adi-metrics.