NOTICE OF DECISION MADE UNDER SECTION 23
OF THE FREEDOM OF INFORMATION ACT 1982 (CTH) (FOI ACT)
WITH REASONS FOR DECISION PROVIDED UNDER SECTION 26
Lauren Willars, an authorised officer of the Australian
Prudential Regulation Authority (APRA
) for the purposes of
section 23(1) of the FOI Act.
Request for documents relating to a copy of the Trust Deed of
the MLC Super Fund lodged with APRA as well as a copy of the
decision of APRA to register this fund in 2016.
, under section 11A(3) of the FOI Act, to the
documents specified in the attached Schedule.
I refer to your email dated 13 August 2018, in which you sought access under the FOI
“The conduct of the corporate Trustee, NULIS Nominees (Australia) Ltd, has been
the focus of attention at the Royal Commission into Misconduct into the Banking,
Superannuation and Financial Services Industry.
NULIS is the trustee of a new superannuation fund established in 2016, the MLC
APRA would need to register this fund and pursuant to Section 29L of the SIS
Act, NULIS would be required to lodge a copy of the Trust Deed with APRA.
The documents I seek are a copy of the Trust Deed of the MLC Super Fund lodged
with APRA as well as a copy of the decision of APRA to register this fund in 2016”
(your FOI request
By email dated 15 August 2018, APRA acknowledged receipt of your request.
DOCUMENTS RELATING TO THIRD PARTIES
The Applicant’s request is for documents that contain information relating to the
business affairs of an APRA-regulated entity. Therefore, APRA extended the statutory
timeline until 13 October 2018 under section 27 of the FOI Act to allow APRA time to
consult with the entity.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
EVIDENCE AND MATERIAL RELIED ON
In making my decision, I have relied on the following evidence and material:
the Applicant’s request received by APRA on 13 August 2018;
acknowledgment email from FOI Officer to the Applicant dated 15 August 2018;
email from FOI Officer notifying the applicant of the third party consultation on 7
email correspondence between the relevant trustee and APRA in September
relevant sections of the Australian Prudential Regulation Authority Act 1998
relevant sections of the FOI Act; and
guidelines issued by the Office of the Australian Information Commissioner to date
REASONS FOR DECISION
APRA has conducted all reasonable searches of its records and identified all documents
relevant to your FOI request (relevant documents
APRA consulted the trustee of the MLC Super Fund. The trustee did not object to the
disclosure of the relevant documents.
I have therefore decided to grant access to the relevant documents.
A list of the relevant documents is set out in the attached Schedule.
ADVICE TO APPLICANT AS TO RIGHTS OF REVIEW
Application for Internal Review of Decision
Pursuant to section 54 of the FOI Act, you have the right to apply for an internal review
of the decision if you disagree with my decision. If you make an application for review,
another officer of APRA will be appointed to conduct a review and make a fresh decision
on the merits of the case.
10. Pursuant to section 54B of the FOI Act, you must apply in writing for a review of the
decision within 30 days after the day the decision has been notified to you.
11. You do not have to pay any other fees or processing charges for an internal review,
except for providing access to further material in the document released as a result of
the review (for example, photocopying, inspection, etc).
12. No particular form is required to apply for review although it is desirable (but not
essential) to set out in the application the grounds on which you consider that the
decision should be reviewed.
13. Application for an internal review of the decision should be addressed to:
Australian Prudential Regulation Authority
GPO Box 9836, Sydney NSW 2001
(02) 9210 3000
(02) 9210 3411
14. If you make an application for internal review and we do not make a decision within 30
days of receiving the application, the agency is deemed to have affirmed the original
decision. However, under section 54D of the FOI Act, APRA may apply, in writing to the
Information Commissioner for further time to consider the internal review.
Application for review by Information Commissioner
15. Pursuant to section 54L of the FOI Act, you have the right to apply to the Information
Commissioner for a review of the original decision or a review of a decision made on
16. Any application must be in writing and must give details of an address where notices
may be sent and include a copy of the original decision or the decision made on internal
17. An application for review by the Information Commissioner should be sent:
Post: GPO Box 5218, Sydney NSW 2001
Email: [email address]
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street
Sydney NSW 2000
Application for review by Administrative Appeals Tribunal
18. If the decision on review by the Information Commissioner is not to grant access to all
of the documents within your request, you would be entitled to seek review of that
decision by the AAT.
19. The AAT is an independent review body with the power to make a fresh decision. An
application to the AAT for a review of an FOI decision does not attract a fee. The AAT
cannot award costs either in your favour or against you, although it may in some
circumstances recommend payment by the Attorney-General of some or all of your
costs. Further information is available from the AAT on 1300 366 700.
Complaints to the Information Commissioner
20. You may complain to the Commissioner concerning action taken by this agency in the
exercise of powers or the performance of functions under the FOI Act. There is no fee
for making a complaint. The Commissioner will conduct an independent investigation of
21. You may complain to the Commissioner either orally or in writing, by any of the methods
outlined above, or by telephone, on 1300 363 992.
Australian Prudential Regulation Authority
Date: 4 October 2018
Schedule of documents to be released
MLC Super Fund Trust Deed
9 May 2016
Decision to register a registrable
8 June 2016
FREEDOM OF INFORMATION ACT 1982 (CTH)
11A Access to documents on request
(1) This section applies if:
(a) a request is made by a person, in accordance with subsection 15(2), to an agency or
Minister for access to:
(i) a document of the agency; or
(ii) an official document of the Minister; and
(b) any charge that, under the regulations, is required to be paid before access is given
has been paid.
(2) This section applies subject to this Act.
Other provisions of this Act are relevant to decisions about access to documents, for example the
(a) section 12 (documents otherwise available);
(b) section 13 (documents in national institutions);
(c) section 15A (personnel records);
(d) section 22 (access to edited copies with exempt or irrelevant matter deleted).
Mandatory access—general rule
(3) The agency or Minister must give the person access to the document in accordance with
this Act, subject to this section.
Exemptions and conditional exemptions
(4) The agency or Minister is not required by this Act to give the person access to the
document at a particular time if, at that time, the document is an exempt document.
Access may be given to an exempt document apart from under this Act, whether or not in
response to a request (see section 3A (objects—information or documents otherwise accessible)).
(5) The agency or Minister must give the person access to the document if it is conditionally
exempt at a particular time unless (in the circumstances) access to the document at that
time would, on balance, be contrary to the public interest.
Division 3 of Part IV provides for when a document is conditionally exempt.
A conditionally exempt document is an exempt document if access to the document would, on
balance, be contrary to the public interest (see section 31B (exempt documents for the purposes
of Part IV)).
Section 11B deals with when it is contrary to the public interest to give a person access to the
(6) Despite subsection (5), the agency or Minister is not required to give access to the
document at a particular time if, at that time, the document is both:
(a) a conditionally exempt document; and
(b) an exempt document:
(i) under Division 2 of Part IV (exemptions); or
(ii) within the meaning of paragraph (b) or (c) of the definition of exempt
in subsection 4(1).
24A Requests may be refused if documents cannot be found, do not exist or have not
Document lost or non-existent
(1) An agency or Minister may refuse a request for access to a document if:
(a) all reasonable steps have been taken to find the document; and
(b) the agency or Minister is satisfied that the document:
(i) is in the agency’s or Minister’s possession but cannot be found; or
(ii) does not exist.
Document not received as required by contract
(2) An agency may refuse a request for access to a document if:
(a) in order to comply with section 6C, the agency has taken contractual measures to
ensure that it receives the document; and
(b) the agency has not received the document; and
(c) the agency has taken all reasonable steps to receive the document in accordance
with those contractual measures.
27 Consultation—business documents
(1) This section applies if:
(a) a request is made to an agency or Minister for access to a document containing
information (business information
) covered by subsection (2) in respect of a
person, organisation or undertaking; and
(b) it appears to the agency or Minister that the person, organisation or proprietor of
the undertaking (the person or organisation concerned
) might reasonably wish to
make a contention (the exemption contention
(i) the document is exempt under section 47 (trade secrets etc.); or
(ii) the document is conditionally exempt under section 47G (business
information) and access to the document would, on balance, be contrary to the
public interest for the purposes of subsection 11A(5).
Access must generally be given to a conditionally exempt document unless it would be
contrary to the public interest (see section 11A).
(2) This subsection covers the following information:
(a) in relation to a person—information about the person’s business or professional
(b) in relation to an organisation or undertaking—information about the business,
commercial or financial affairs of the organisation or undertaking.
(3) In determining, for the purposes of paragraph (1)(b), whether the person or organisation
concerned might reasonably wish to make an exemption contention because of business
information in a document, the agency or Minister must have regard to the following
(a) the extent to which the information is well known;
(b) whether the person, organisation or undertaking is known to be associated with the
matters dealt with in the information;
(c) the availability of the information from publicly accessible sources;
(d) any other matters that the agency or Minister considers relevant.
Opportunity to make submissions
(4) The agency or Minister must not decide to give access to the document unless:
(a) the person or organisation concerned is given a reasonable opportunity to make
submissions in support of the exemption contention; and
(b) the agency or the Minister has regard to any submissions so made.
(5) However, subsection (4) only applies if it is reasonably practicable for the agency or
Minister to give the person or organisation concerned a reasonable opportunity to make
submissions in support of the exemption contention, having regard to all the
circumstances (including the application of subsections 15(5) and (6) (time limits for
Notice of decision to give access
(6) If the agency or Minister decides to give access to the document, the agency or Minister
must give written notice of the decision to both of the following:
(a) the person or organisation concerned;
(b) the applicant.
Access not to be given until review or appeal opportunities have run out
(7) However, the agency or Minister must not give the applicant access to the document
unless, after all the opportunities of the person or organisation concerned for review or
appeal in relation to the decision to give access to the document have run out, the
decision to give access still stands, or is confirmed.
The decision to give access to the document is subject to internal review (see Part VI), review by
the Information Commissioner (see Part VII) and review by the Tribunal (see Part VIIA).
For when all opportunities for review or appeal in relation to the decision to give access to the
document have run out
, see subsection 4(1).
Notice and stay of decision not to apply unless submission made in support of exemption
(8) Subsections (6) and (7) do not apply unless the person or organisation concerned makes a
submission in support of the exemption contention as allowed under paragraph (4)(a).
Edited copies and business information
(9) This section applies:
(a) in relation to an edited copy of a document—in the same way as it applies to the
(b) in relation to a document containing business information—to the extent to which
the document contains such information.