Australian Prudential Regulation Authority (confidentiality) determination No. 7 of 2015

Administered by Department of the Treasury

Legislation au F2015L00714 Not in force Legislative Instrument

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Australian Prudential Regulation Authority (confidentiality) determination

No. 7 of 2015

 

Information provided by banks under certain reporting standards

 

 

EXPLANATORY STATEMENT

Prepared by the Australian Prudential Regulation Authority (APRA)

Australian Prudential Regulation Authority Act 1998 (APRA Act), s 57

The purpose of the Australian Prudential Regulation Authority (confidentiality) determination No. 7 of 2015 (Determination No. 7) made on 18 May 2015 is to enable APRA to disclose certain information provided by banks to APRA under the reporting standards listed in the Appendix. Releasing this information will be of use to regulators, policymakers, industry, researchers, analysts and other interested parties.

Legislative background

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

S 57 of the APRA Act gives APRA power to determine whether a document given under s 13 of the Collection of Data Act contains confidential information.  The section provides that before doing so APRA must give relevant entities or bodies, or their representative association, a reasonable opportunity to make representations as to whether information of the kind contained in the document is confidential, and take such representations into account (the consultation undertaken is discussed below).

Information covered by the determination 

Determination No. 7 provides that information given to APRA under the reporting standards listed in the Appendix (made under s 13 of the Collection of Data Act), being information received on or after the date of APRA’s last determination under s 57 in respect of information provided under the reporting standards listed in the Appendix and prior to the date of Determination No. 7, is non-confidential.  Determination No. 7 applies to all banks that have submitted data under the reporting standards listed in Attachment A.

Consultation

In accordance with s 57, APRA issued a consultation letter to all banks on 4 July 2012, as well as providing a link to this consultation letter on its website. The consultation letter provided all affected entities an opportunity to make representations on the proposed determination of confidentiality. This consultation period ended on 31 July 2012.

There were eight responses received from entities during the consultation. Of these, four supported or had no objections to the proposed determination and four raised concerns with the proposed determination.

The support for the proposed determination noted the benefits of increased transparency of information. Also highlighted were the general benefits of more relevant and useful data collections.

The main opposition noted in the consultation submissions concerned the potential ability of a data user to assess a bank’s performance outside Australia and transactions between a bank and its clients.

APRA considers, after taking affected entities’ representations into account, that Determination No. 7 not only helps APRA fulfil its obligations to the Bank for International Settlements (BIS), the Reserve Bank of Australia (RBA) and the International Monetary Fund (IMF) but may also benefit regulated entities, other regulators, policymakers, the wider industry, researchers, analysts and other interested parties.

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 B to this Explanatory Statement.
Attachment A

 

Determination No. 7 covers the following reporting standards:

 

  • ARS 231.1a International Exposures: Locational (Assets) Part 1
  • ARS 231.1b International Exposures: Locational (Liabilities) Part 1
  • ARS 231.2 International Exposures: Locational Part 2
  • ARS 231.3a International Exposures: Consolidated (Domestic Entity)
  • ARS 231.3b International Exposures: Consolidated (Foreign Entity)


ATTACHMENT 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. 7 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.

Overview of the Legislative Instrument

 

The purpose of making this legislative instrument is to enable APRA to release the BIS International Exposures report, which will contain data in respect of March 2015.

 

Human rights implications

 

APRA has assessed Determination No. 7 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 to Determination No. 7.

Article 21 of the ICCPR prohibits the arbitrary or unlawful interference with a person’s privacy, family, home and correspondence, and attacks on reputation. Article 21 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.

Determination No. 7 will facilitate the disclosure of specific information provided to APRA by banks 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, Determination No. 7 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.

 

Overview

The Australian Prudential Regulation Authority (confidentiality) determination No. 7 of 2015 was introduced to enable the Australian Prudential Regulation Authority (APRA) to disclose specific information provided by banks under certain reporting standards, as listed in the appendix, to various stakeholders including regulators, policymakers, industry, researchers, analysts and other interested parties. The enactment of this determination under section 57 of the Australian Prudential Regulation Authority Act 1998 (APRA Act) was necessary to facilitate the release of non-confidential information provided by banks to APRA, thus allowing for greater transparency and data utility without contravening the confidentiality provisions of the APRA Act. The policy objective behind this determination is to support APRA in fulfilling its obligations to international bodies such as the Bank for International Settlements, the Reserve Bank of Australia, and the International Monetary Fund, while also benefiting the wider industry and research community by making relevant and useful data available. The determination was made after APRA consulted with relevant entities, taking their representations into account, and concluded that the release of the specified information would not infringe on any human rights as assessed under the Human Rights (Parliamentary Scrutiny) Act 2011.

Scope and Application

The Australian Prudential Regulation Authority (confidentiality) determination No. 7 of 2015 serves to facilitate the disclosure of specific information provided by banks to the Australian Prudential Regulation Authority (APRA) under certain reporting standards. This determination is made under section 57 of the Australian Prudential Regulation Authority Act 1998, and it applies to all banks that have submitted data under the specified reporting standards. The purpose is to enable APRA to disclose this information to regulators, policymakers, industry, researchers, analysts, and other interested parties. The determination is applicable to information received by APRA from banks on or after the date of APRA’s last determination under section 57 in respect of the information provided under the specified reporting standards, and prior to the date of this determination. APRA undertook a consultation process with the relevant entities, allowing them to make representations on the proposed determination, and considered these representations in making the determination. This legislative instrument is compatible with human rights, as it does not engage any of the applicable rights or freedoms recognised in the relevant international instruments.

Key Provisions

The Australian Prudential Regulation Authority (confidentiality) determination No. 7 of 2015 (Determination No. 7) serves to allow the Australian Prudential Regulation Authority (APRA) to disclose certain information provided by banks under specified reporting standards (s 56(5C) APRA Act). This determination is designed to benefit regulators, policymakers, industry, researchers, analysts, and other interested parties by enhancing the transparency of financial data (s 57 APRA Act). The information covered by Determination No. 7 includes data related to international exposures submitted by banks under certain reporting standards listed in Attachment A of the determination. The determination applies to all banks that have submitted data under these reporting standards, specifically to information received by APRA on or after the date of APRA’s last determination in respect of such information, and prior to the date of Determination No. 7. Determination No. 7 imposes obligations on APRA to consult with relevant entities, such as banks, before making a determination regarding the confidentiality of information. This consultation ensures that affected parties have an opportunity to present their views on whether the information in question is confidential (s 57 APRA Act). In this instance, APRA issued a consultation letter on 4 July 2012, with a response period ending on 31 July 2012. While the determination received both support and objections from entities, APRA concluded that the benefits of increased transparency and the utility of the data outweighed the concerns raised. In terms of compliance and enforcement, Determination No. 7 does not directly create offences or specify penalties for breaches. However, any misuse of the disclosed information that falls outside the scope of the determination could potentially lead to legal consequences under other applicable laws. For instance, if the released data were used to unlawfully interfere with an individual's privacy, it could contravene Article 21 of the International Covenant on Civil and Political Rights (ICCPR), though Determination No. 7 itself does not engage any of the applicable rights or freedoms recognised in the ICCPR as it does not involve the disclosure of individual-specific information. The determination is also accompanied by a Statement of Compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, which confirms that Determination No. 7 is compatible with human rights as it does not raise any human rights issues. The statement elaborates that the determination does not involve the disclosure of information directly relating to individual persons and ensures that no information pertaining to an individual person can be deduced from the data released.

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