FOI 19 5 Notice of Decision.pdf

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

Applicant:

Phillip Sweeney
Decision-maker:
Lauren  Willars,  an  authorised  officer  of  the  Australian
Prudential  Regulation  Authority (APRA) for the purposes  of
section 23(1) of the FOI Act.
Relevant
Request  for  documents  relating  to  a  copy  of  the  founding
documents:
Trust  Deed  of  the  National  Australia  Bank  Group
Superannuation Fund A and a copy of the decision of APRA
to grant fund registration.
My decision:
Refuse  access,  under  section  24A  of  the  FOI  Act,  to  one
document, because the document cannot be found or does
not exist.
Grant  access,  under  section  11A(3)  of  the  FOI  Act,  to  the
document specified in the attached Schedule.

MATERIAL FACTS
1.
I refer to your email dated 14 August 2018, in which you sought access under the FOI
Act to:
“In order to obtain fund registration Trustees had to lodge a copy of the founding
Trust Deed with APRA pursuant Section 29L of the SIS Act.
The  document  I  seek  are  a  copy  of  the  founding  Trust  Deed  of  the  National
Australia Bank Group Superannuation Fund A and a copy of the decision of APRA
to grant fund registration.
The trustee at the time of fund registration was most likely to be National Australia
Bank Superannuation Fund Ltd.”
(your FOI request).

2.
By email dated 15 August 2018, APRA acknowledged receipt of your request.

DOCUMENTS RELATING TO THIRD PARTIES
3.
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 14 October 2018 under section 27 of the FOI Act to allow APRA time to
consult with the entity.

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
1

EVIDENCE AND MATERIAL RELIED ON
4.
In making my decision, I have relied on the following evidence and material:
a)
the Applicant’s request received by APRA on 14 August 2018;
b)
acknowledgment email from FOI Officer to the Applicant dated 15 August 2018;
c)
email from FOI Officer notifying the applicant of the third party consultation on 7
September 2018;
d)
email  correspondence  between  the  relevant  trustee  and  APRA  in  September
2018;
e)
relevant sections of the Australian Prudential Regulation Authority Act 1998 (Cth)
(APRA Act);
f)
relevant sections of the FOI Act; and
g)
guidelines issued by the Office of the Australian Information Commissioner to date
(FOI Guidelines).

REASONS FOR DECISION
5.
APRA has conducted all reasonable searches of its records and identified documents
relevant to your FOI request (relevant documents).

6.
I have decided to refuse access to the  ‘founding Trust Deed of the National Australia
Bank  Group  Superannuation  Fund  A’  under  section  24A  of  the  FOI  Act  because  the
document cannot be found or does not exist.
7.
APRA consulted the relevant trustee. The trustee did not object to the disclosure of the
document.
8.
I  have  therefore  decided  to  grant  access  to  the  document  specified  in  the  attached
Schedule.
ADVICE TO APPLICANT AS TO RIGHTS OF REVIEW
Application for Internal Review of Decision
9.
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:

FOI Officer
Australian Prudential Regulation Authority
GPO Box 9836, Sydney NSW 2001
Telephone:
(02) 9210 3000
Facsimile:
(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
review.
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
review.
17.  An application for review by the Information Commissioner should be sent:

Online: www.oaic.gov.au

Post: GPO Box 5218, Sydney NSW 2001

Email: xxxxxxxxx@xxxx.xxx.xx

In person:
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
your complaint.
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.

Lauren Willars
FOI Officer
Australian Prudential Regulation Authority
Date:  4 October 2018

Schedule of documents to be released
Document
Document title
Date
number
Document 1
Decision of APRA to Grant Fund
28 April 2006
Registration to NAB Group
Superannuation Fund A

FREEDOM OF INFORMATION ACT 1982 (CTH)
11A  Access to documents on request
Scope

(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.
Note:
Other provisions of this Act are relevant to decisions about access to documents, for example the
following:
(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.
Note:
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.
Note 1:
Division 3 of Part IV provides for when a document is conditionally exempt.
Note 2:
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)).
Note 3:
Section 11B deals with when it is contrary to the public interest to give a person access to the
document.

(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
document in subsection 4(1).

24A  Requests may be refused if documents cannot be found, do not exist or have not
been received
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
Scope

(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) that:

(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).
Note:
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
affairs;

(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
matters:

(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
processing requests)).
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.
Note 1:
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).
Note 2:
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
contention

(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
document; and

(b)  in relation to a document containing business information—to the extent to which
the document contains such information.