Australian Prudential Regulation Authority (confidentiality) determination No. 8 of 2015
EXPLANATORY STATEMENT
Prepared by the Australian Prudential Regulation Authority (APRA)
Australian Prudential Regulation Authority Act 1998 (APRA Act), s 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.8 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.
2. Purpose and operation of the instrument
This Determination provides that certain information (described below) given to APRA under any of the following reporting standards, or any prior reporting standard of the same name and number, made under s 13 of the FSCOD Act (collectively, Reporting Standards) is non-confidential:
- SRS 200.0 (2005) Statement of Financial Performance made under Financial Sector (Collection of Data) determination No. 51 of 2005;
- SRS 210.0 (2005) Statement of Financial Position made under Financial Sector (Collection of Data) determination No. 52 of 2005;
- SRS 230.0 (2005) Transactions with Associated Entities made under Financial Sector (Collection of Data) determination No. 56 of 2005;
- SRS 240.0 (2005) Membership Profile made under Financial Sector (Collection of Data) determination No. 57 of 2005; and
- SRS 250.0 (2005) Superannuation Entity Profile made under Financial Sector (Collection of Data) determination No. 41 of 2005.
The Reporting Standards apply to all superannuation entities other than small APRA funds, self-managed superannuation funds and single member approved deposit funds (relevant superannuation entities).
This Determination applies to reporting documents (collectively, Reporting Documents) that relate to a reporting period ending on or after 1 January 2004 and before 1 January 2015, which are received by APRA on or after 11 December 2013 under:
- reporting form SRF 200.0, under Reporting Standard SRS 200.0;
- reporting form SRF 210.0, under Reporting Standard SRS 210.0;
- reporting form SRF 230.0, under Reporting Standard SRS 230.0;
- reporting form SRF 240.0, under Reporting Standard SRS 240.0; or
- reporting form SRF 250.0, under Reporting Standard SRS 250.0,
excluding the following items of information:
- information reported about a pooled superannuation trust (PST).
Public access to the information covered by this Determination would facilitate comparison and further analysis of the expected risks and returns associated with individual superannuation entities and assist members to assess information provided, or representations made, by trustees. The information is also expected to assist trustees in evaluating the effectiveness of long-term investment strategies. Over time, this is expected to improve both the public understanding of, and the level of competition within, the Australian superannuation industry.
3. Consultation
APRA released the discussion paper Fund level disclosure from the APRA Superannuation statistics collection on 20 November 2008. The discussion paper outlined the issues and questions to be resolved in creating an annual superannuation fund-level publication and sought comments and suggestions on the data items to be included (i.e., a reference table and also compilation tables). The discussion paper also stated that APRA “nevertheless intends to write to all potentially affected trustees, inviting them to nominate any data items from our existing statistical collections which might be confidential”.
On 14 May 2009 APRA issued a consultation letter to the 263 trustees of the relevant superannuation entities and 16 other parties (including industry bodies and professional associations). The letter advised that APRA proposed to determine the Reporting Documents to be non-confidential. The consultation period closed on 12 June 2009.
Nineteen submissions were received by APRA in response to the consultation carried out in 2009 about the proposed determination of non-confidentiality. The submissions were made by trustees as well as industry bodies and service providers (such as custodians).
APRA, after consideration of the submissions, modified the scope of the proposed determination of non-confidentiality to exclude the information reported about a PST.
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. 8 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, certain information provided to APRA by trustees of superannuation entities.
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 RSE licensees in accordance with the reporting standard. The information required by the reporting standard is information that is otherwise publicly disclosed. As the reporting standard does not require the submission of personal information, there are no human rights implications.
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.
[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.