Australian Prudential Regulation Authority (confidentiality) determination No. 10 of 2014

AuAustralian Prudential Regulation Authority (confidentiality) determination

No. 10 of 2014

Information provided by superannuation entities under certain reporting standards

EXPLANATORY STATEMENT

Prepared by the Australian Prudential Regulation Authority (APRA)

Australian Prudential Regulation Authority Act 1998, section 57

1. Purpose

The purpose of the Australian Prudential Regulation Authority (confidentiality) determination No.10  of 2014 (the determination) made on 24 September 2014 is to enable APRA to disclose, including by way of publication, certain information provided by superannuation entities to APRA under the reporting standards listed in Appendix A. This information will be of use to regulators, policymakers, industry, researchers, analysts and other interested parties.  It will supplement information in relation to MySuper products which APRA will be publishing pursuant to a requirement in section 348A of the Superannuation Industry (Supervision) Act 1993 (the SIS Act).

2.      Legislative background

Subsection 56(5C) of the Australian Prudential Regulation Authority Act 1998 (APRA Act) provides that it is not an offence against subsection 56(2) of that Act (APRA’s secrecy provision) to disclose information in a reporting document given to APRA under section 13 of the Financial Sector (Collection of Data) Act 2001 (FSCOD Act) where APRA has determined, under section 57, that the document does not contain confidential information.

Under subsections 57(2) and (4) of the APRA 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 APRA 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.

3.      Information covered by the determination 

The determination provides that certain information given to APRA under the reporting standards listed in Appendix A is non-confidential. The reporting standards in Appendix A were made under section 13 of the FSCOD Act. This determination applies to information in forms for SRS 001.0, SRS 410.0, SRS 533.0, SRS 602.0, SRS 700.0, SRS 702.0 and SRS 710.0.

Under section 348A of the SIS Act, APRA is required to publish in respect of each quarter information about fees charged, costs incurred and net returns, on a product by product basis, for all MySuper products, including large employer products[1] and material goodwill products[2].    The determination does not apply to data that APRA is required to publish under section 348A of the SIS Act as that information is published for the purposes of a prudential regulation framework law (the SIS Act) within the meaning of subsection 56(3) of the APRA Act.

4.      Consultation

In accordance with the requirements for consultation under section 57 of the APRA Act , APRA released a discussion paper in November 2013[3] that proposed that all superannuation entity data[4] be determined non-confidential, as well as proposals to change its statistical publications. The discussion paper provided all affected entities an opportunity to make representations on the proposed determination. The consultation period ended on 31 January 2014. APRA also invited some affected entities to make additional representations to clarify their submissions in response to the discussion paper, particularly in relation to proposed disclosures in institution-level publications.

APRA received submissions from 12 entities and representative associations during the consultation. These submissions supported the superannuation publications, and supported the principles behind the proposals to make superannuation data non-confidential. However, some submissions suggested that making all data non-confidential would cause detriment to commercial interests.

As a result, APRA revised the proposed determination and only included information where entities and representative associations raised no objection on the grounds of commercial detriment. Further consultation was then held in relation to the revised proposed determination with representative associations and their members.

APRA intends to further consult with entities and representative associations on other superannuation data that is collected under the FSCOD Act and is not included in this determination.

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

5.      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 B to this Explanatory Statement.

Appendix A

Determination No. 10 of 2014 covers the following reporting standards and data:

Part 1 (reporting documents covered by this determination)

This determination applies to information in the following reporting forms given to APRA, under the following reporting standards, where a period of at least 14 days has elapsed from the date the RSE licensee was required to provide the information specified in the relevant reporting standard.

1. Reporting Standard SRS 410.0 Accrued Default Amounts
2. Reporting Standard SRS 602.0 Wind-up
3. Reporting Standard SRS 700.0 Product Dashboard
4. Reporting Standard SRS 710.0 Conditions of Release

Part 2 (Parts of reporting documents covered by this determination)

This determination applies to information in the following parts of reporting forms given to APRA under the following reporting standards, where a period of at least 14 days has elapsed from the date the RSE licensee was required to provide the information specified in the relevant reporting standard.

Appendix B

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. 10 of 2014

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.

Overview of the Legislative Instrument

This Legislative Instrument will enable APRA to disclose (including by way of publication in industry bulletins) certain information provided to it by 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 this Legislative Instrument against the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (HRPS Act) and determined that only Article 17 of the International Covenant on Civil and Political Rights (ICCPR) is conceivably of relevance.

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 given to APRA by superannuation entities 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 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.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

[1] See Section 29TB of the SIS Act for information on MySuper products for large employers.

[2] See Section 29TA of the SIS Act for information on material goodwill products.

[3] APRA Discussion Paper Publication of superannuation statistics and confidentiality of superannuation data.  November 2013.

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