Australian Prudential Regulation Authority (confidentiality) determination
No. 2 of 2019
Information provided by authorised deposit-taking institutions under Reporting Standards ARS 720.0, ARS 720.1, ARS 720.2 and ARS 720.3
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 22 August 2019, APRA made Australian Prudential Regulation Authority (confidentiality) determination No. 2 of 2019 (the instrument) which determines that certain information in reporting documents provided to APRA under specified reporting standards (namely ARS 720.0, ARS 720.1, ARS 720.2, and ARS 720.3), 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 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 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 forms under the following reporting standards (the Reporting Standards), is non-confidential:
(a) Reporting Standard ARS 720.0 ABS/RBA Statement of Financial Position;
(b) Reporting Standard ARS 720.1 ABS/RBA Loans and Finance Leases;
(c) Reporting Standard ARS 720.2 ABS/RBA Deposits; and
(d) Reporting Standard ARS 720.3 ABS/RBA Intra-group Assets and Liabilities.
The information determined non-confidential relates to information on assets and liabilities for selected individual authorised deposit-taking institutions (ADIs), including details on loans and finance leases and deposits.
The information will be disclosed by APRA under subsection 56(5C) of the Act to form the basis of APRA’s statistical publications. The statistical publications will be of use to regulators, policymakers, industry, researchers, analysts and other interested parties.
Similar information was regularly published in Monthly Banking Statistics until June 2019.
3. Consultation
APRA conducted consultation for this instrument. APRA commenced consultations in relation to whether specified information in the Reporting Standards should be determined non-confidential by letter to ADIs, and their respective representative bodies, on 1 November 2018.[4] APRA issued a further letter to industry on 5 July 2019 confirming that the specified information will be determined non-confidential.[5]
No objections were raised to the information being determined non-confidential.
APRA considers that determining this information non-confidential improves the transparency of the ADI industry and is consistent with government open data policies. 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. 2 of 2019
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
The purpose of this Legislative Instrument is to determine non-confidential certain information provided to APRA by authorised deposit-taking institutions (ADIs) under the following reporting standards:
(a) Reporting Standard ARS 720.0 ABS/RBA Statement of Financial Position;
(b) Reporting Standard ARS 720.1 ABS/RBA Loans and Finance Leases;
(c) Reporting Standard ARS 720.2 ABS/RBA Deposits; and
(d) Reporting Standard ARS 720.3 ABS/RBA Intra-group Assets and Liabilities.
This Legislative Instrument enables APRA to disclose the information for publication. 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 certain reporting standards. 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 ‘Changes to Monthly Banking Statistics’ Letter to all ADIs dated 1 November 2018: https://www.apra.gov.au/sites/default/files/letter_changes_to_monthly_banking_statistics_publication_v1.pdf.
[5] See ‘Refreshing APRA’s Statistics Publications for Authorised Deposit-Taking Institutions’ Letter dated 5 July 2019: https://www.apra.gov.au/sites/default/files/letter_refreshing_apras_statistics_publications_for_authorised_deposit-taking_institutions_v1.pdf.