Australian Prudential Regulation Authority (confidentiality) determination No. 6 of 2015
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 15 May 2015, APRA made Australian Prudential Regulation Authority (confidentiality) determination No.6 of 2015 (the instrument) which determines that all or 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.
- 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 November 2013 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 31 January 2014.
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.
APRA further consulted with entities and representative associates and 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 considers, after taking affected entities’ and representative associates’ representations into account that 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
Australian Prudential Regulation Authority (confidentiality) determination No. 6 of 2015
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