Australian Prudential Regulation Authority (confidentiality) determination No. 3 of 2022

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Legislation au F2022L01196 In force Legislative Instrument

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Australian Prudential Regulation Authority (confidentiality) determination
No. 3 of 2022

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 a relevant reporting document or all or a specified part of relevant reporting documents of a specified kind contains, or does not contain, confidential information.

On 12 September 2022, APRA made Australian Prudential Regulation Authority (confidentiality) determination No. 3 of 2022 (the instrument), which determines that certain information provided to APRA under specified reporting standards by financial sector entities, is not confidential.

The instrument commences on the date of registration on the Federal Register of Legislation.

  1. Background

Subsection 56(2) of the Act provides that it is an offence to disclose “protected information”[1] or a “protected document”[2], which includes 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 reporting documents listed in the instrument, having been provided to APRA by regulated entities 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 does 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.

2.      Purpose and operation of the instrument 

The instrument provides that certain information given to APRA under the reporting standards listed in the instrument is non-confidential.  The information determined to be non-confidential is set out in the Schedule to the instrument.  The Schedule is divided into three main parts and covers reporting documents submitted to APRA under current reporting standards. 

Part 1 covers reporting documents which are subject to the instrument in their entirety. Part 2 covers reporting documents which are partly, and not entirely, subject to the instrument. Part 3 covers reporting documents which are partly, and not entirely, subject to the instrument where the information relates to a MySuper product. 

The information which is determined by the instrument to be non-confidential will form the basis of statistical publications which will be of use to regulators, policymakers, industry, researchers, analysts and other interested parties and will ultimately promote greater transparency, best-practice and accountability across the superannation industry. 

3.      Consultation

 

APRA consulted with interested parties in relation to this instrument. In accordance with the requirements for consultation under section 57 of the APRA Act, APRA released a discussion paper in February 2022 and held two industry roundtable discussions on 4 April 2022 and 7 April 2022. The discussion paper, at Attachment F, sets out the specified parts of reporting forms[4] that APRA proposed to determine does not contain confidential information.[5] The discussion paper and roundtables provided all interested partes a reasonable opportunity to make representations on the proposed determinations. The consultation period ended on 15 April 2022.

 

APRA received twelve submissions from industry stakeholders.[6] Submissions were generally supportive of APRA’s proposal to determine much of the data reported as non-confidential. However, a number of respondents raised concerns about APRA determining certain items of data as non-confidential and publishing this data at the fund or product-level. The items of data that were the object of concern were mainly those relating to detailed expenses, derivatives and custom fee arrangements.

 

APRA’s general proposal, outlined in the discussion paper, was that most of the data collected under certain reporting standards would be determined non-confidential and publically accessible. However, APRA has modified that general proposal after having taken into account all pieces of feedback received from industry stakeholders and after having considered the benefit to the public from the disclosure of the data in the reporting document and whether the public benefit of such disclosure outweighs any detriment to commercial interests that such a disclosure may cause.

 

APRA’s final determinations are set out in the Schedule to the instrument.[7] 

 

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 with Human Rights is provided at Appendix A.


Appendix 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. 3 of 2022

 

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

This Legislative Instrument will enable APRA to disclose certain information provided to APRA by financial sector entities under certain reporting standards. This information will be of use by, 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 HRPS Act and determined that only Article 17 of the International Covenant on Civil and Political Rights (ICCPR) is conceivably of relevance to this 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.

This Legislative Instrument will facilitate the disclosure of specific information provided to APRA by financial sector entities 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 Legislative Instrument 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 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]   Which are required to be provided to APRA under the Financial Sector (Collection of Data) Act 2001.

[5] https://www.apra.gov.au/sites/default/files/2022-02/Discussion%20paper%20-%20Superannuation%20Data%20Transformation%20Publications%20and%20Confidentiality_0.pdf

[6] https://www.apra.gov.au/phase-1-breadth

[7] Attachment D of APRA’s Response Paper on the SDT Publications and Confidentiality (July 2022) also sets out the finalised confidentiality positions: https://www.apra.gov.au/phase-1-breadth

 

Overview

The Australian Prudential Regulation Authority (confidentiality) determination No. 3 of 2022, issued under section 57 of the Australian Prudential Regulation Authority Act 1998, aims to clarify the confidentiality status of specific information provided to the Australian Prudential Regulation Authority (APRA) by financial sector entities. This legislative instrument was introduced to address the need for greater transparency and accountability within the superannuation industry by determining that certain information, as outlined in the schedule, does not constitute confidential information. This will facilitate the public release of such data, promoting better practices and facilitating informed decision-making by regulators, policymakers, industry stakeholders, researchers, and analysts. The determination was made after consultation with relevant industry stakeholders and aims to balance the public benefit of data disclosure against potential commercial detriments. The instrument is compatible with human rights, as it does not interfere with the privacy or reputation of individual persons, and only facilitates the disclosure of aggregated, non-identifiable data.

Scope and Application

The Australian Prudential Regulation Authority (confidentiality) determination No. 3 of 2022 applies to the Australian Prudential Regulation Authority (APRA) and financial sector entities, specifically those entities subject to the Financial Sector (Collection of Data) Act 2001. This determination identifies certain information contained in reporting documents submitted to APRA by regulated entities as non-confidential, thereby allowing for its disclosure. The instrument aims to promote transparency, best-practice and accountability in the superannuation industry by facilitating the publication of statistical information that is of use to regulators, policymakers, industry, researchers, analysts, and other interested parties. The instrument is applicable on a national level, as APRA operates under the Commonwealth of Australia, and it does not impose any specific exclusions, exemptions, or thresholds beyond what is outlined in the determination itself. However, the scope and specifics of the non-confidential information are detailed in the Schedule attached to the instrument. Additionally, the application of this determination may be extended or restricted through subsequent legislative instruments made by APRA under the authority granted by the Australian Prudential Regulation Authority Act 1998.

Key Provisions

The Australian Prudential Regulation Authority (confidentiality) determination No. 3 of 2022, made under section 57 of the Australian Prudential Regulation Authority Act 1998, specifies that certain information provided to APRA by financial sector entities is non-confidential. This determination is divided into three parts, covering different types of reporting documents. Part 1 addresses documents that are fully subject to the instrument, Part 2 pertains to documents that are partially subject to it, and Part 3 deals with documents that are partially subject to the instrument, specifically concerning MySuper products. The information identified as non-confidential will be used for statistical publications, enhancing transparency, best practice, and accountability within the superannuation industry. Entities governed by this determination must ensure that the information they provide to APRA aligns with the non-confidential categories outlined in the Schedule. This involves accurately reporting data under the specified reporting standards and ensuring that no protected information is disclosed. Entities are also required to review and adhere to any representations made regarding the confidentiality of the information. Furthermore, APRA mandates that all entities must submit the required reporting documents within the stipulated timeframes and in the specified format to ensure compliance with the determination. Breaches of this determination may result in legal consequences. Under section 56 of the Australian Prudential Regulation Authority Act 1998, disclosing protected information without authorisation is an offence. The maximum penalty for such an offence can include fines up to $210,000 for individuals and $1,050,000 for corporations, as well as potential imprisonment. Additionally, civil penalties may apply for non-compliance, and entities may face reputational damage and loss of trust from stakeholders if they fail to adhere to the requirements of the determination. These stringent measures underscore the importance of compliance with the confidentiality provisions set forth by APRA.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.