FOI 19 30 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:
Ben  Carruthers,  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
documents:
My decision:
Refuse  access,  under  section  38  of  the  FOI  Act,  to  the
document responsive to the Applicant’s request because the
document  is  a  protected  document  and  contains  protected
information under section 56 of the APRA Act.

MATERIAL FACTS
1.
I refer to your email dated 22 February 2019, in which you sought access under the FOI
Act to:
“APRA  member  John  Lonsdale  advised  the  Senate  Estimates  Committee  on  21
February 2019 that APRA is pursuing a number of referrals from Royal Commissioner
Hayne.

The Committee was advised that APRA has now written to these organisations and has
asked for "information".

Mr  Lonsdale  advised  the  Committee  that  "We  are  seeking  independent  legal  advice,
whether with this information a case exists to prosecute and go to court".

The document or documents I seek are a copy of such a letter that was sent to NULIS
Nominees  (Australia)  Ltd  and/or  a  copy  of  such  a  letter  that  was  sent  to  the  National
Australia Bank which owns NULIS Nominees (Australia) Ltd”


(your FOI request).

2.
By email dated 25 February 2019, APRA acknowledged receipt of your request.

EVIDENCE AND MATERIAL RELIED ON
3.
In making my decision, I have relied on the following evidence and material:
a)
the Applicant’s request received by APRA on 22 February 2019;
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
1

b)
acknowledgment email from FOI Officer to the Applicant dated 25 February 2019;
c)
relevant sections of the Australian Prudential Regulation Authority Act 1998 (Cth)
(APRA Act);
d)
relevant sections of the FOI Act; and
e)
guidelines issued by the Office of the Australian Information Commissioner to date
(FOI Guidelines).

REASONS FOR DECISION
4.
APRA has conducted all reasonable searches of its records to identify  all documents
relevant to your FOI request. APRA has identified one document that responds to your
FOI request.
5.
I have decided to refuse access to the relevant document under section 38 of the FOI
Act, as the document is a protected document and contains protected information for
the purpose of section 56 of the APRA Act.
Secrecy Provisions
6.
I  have  taken  the following  approach  in  relation to  the  application  of section  56  of the
APRA Act and section 38 of the FOI Act:

a)
under section 38 of the FOI Act, a document is exempt if disclosure is prohibited
under  a  provision  of  an  enactment  and  section  38  expressly  applies  to  that
provision;
b)
subsection 56(11) of the APRA Act expressly applies section 38 of the FOI Act so
that  any  document  that  is  a  ‘protected  document’  or  contains  ‘protected
information’ within the meaning of subsection 56(1) of the APRA Act is also an
exempt document under section 38 of the FOI Act;
c)
under section 56(2) of the APRA Act it is an offence to directly or indirectly disclose
protected documents and/or protected information unless a specified exemption
applies. This offence provision is binding on me as an APRA staff member. The
offence is punishable by up to two years imprisonment;
d)
a  ‘protected  document’  is  defined  in  section  56(1)  of  the  APRA  Act  to  include
documents given or produced under or for the purposes of a prudential regulation
framework  law,  and  containing  information  relating  to  the  affairs  of  a  financial
sector entity. The Superannuation Industry (Supervision) Act 1993 is a prudential
regulation  framework  law.  The  document  contains  information  relating  to  the
affairs of NULIS Nominees (Australia) Ltd that is not otherwise publicly available.
Therefore, the document is a protected document;
e)
‘protected  information’  is  defined  in  section  56(1)  of  the  APRA  Act  to  include
information  disclosed  or  obtained  under  or  for  the  purposes  of  a  prudential
regulation framework law, and relating to the affairs of a financial sector entity;
f)
for the same reasons set out in paragraph  6(d) above,  information contained in
the s 56 document is protected, unless otherwise publicly available; and

g)
the information and the s 56 document is not otherwise publicly available.
7.
I am satisfied that the s 56 document is a protected document, and contains protected
information  as  defined  in  section  56(1)  of  the  APRA  Act  and  that  the  document  is
consequently exempt from disclosure under section 38 of the FOI Act.

ADVICE TO APPLICANT AS TO RIGHTS OF REVIEW
Application for Internal Review of Decision
8.
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.
9.
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.
10.  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).
11.  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.
12.  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
13.  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
14.  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.
15.  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.
16.  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
17.  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.
18.  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
19.  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.
20.  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.

Ben Carruthers
FOI Officer
Australian Prudential Regulation Authority
Date: 22 March 2019

FREEDOM OF INFORMATION ACT 1982
38  Documents to which secrecy provisions of enactments apply

(1)  Subject to subsection (1A), a document is an exempt document if:

(a)  disclosure of the document, or information contained in the document, is prohibited
under a provision of an enactment; and

(b)  either:

(i)  that provision is specified in Schedule 3; or

(ii)  this section is expressly applied to the document, or information, by that
provision, or by another provision of that or any other enactment.

(1A)  A person’s right of access to a document under section 11 or 22 is not affected merely
because the document is an exempt document under subsection (1) of this section if
disclosure of the document, or information contained in the document, to that person is
not prohibited by the enactment concerned or any other enactment.

(2)  Subject to subsection (3), if a person requests access to a document, this section does not
apply in relation to the document so far as it contains personal information about the
person.

(3)  This section applies in relation to a document so far as it contains personal information
about a person if:

(a)  the person requests access to the document; and

(b)  disclosure of the document, or information contained in the document, is prohibited
under section 503A of the Migration Act 1958 as affected by section 503D of that
Act.

(4)  In this section:
enactment includes a Norfolk Island enactment.

AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY ACT 1998
56  Secrecy—general obligations

(1)  In this section:
body regulated by APRA includes a body that has at any time been a body regulated by
APRA.
court includes a tribunal, authority or person having the power to require the production
of documents or the answering of questions.
financial sector entity has the same meaning as in the Financial Sector (Collection of
Data) Act 2001.
officer means:

(a)  an APRA member; or

(b)  an APRA staff member; or

(c)  any other person who, because of his or her employment, or in the course of that
employment:

(i)  has acquired protected information; or

(ii)  has had access to protected documents;

  other than an employee of the body to which the information or document relates.
personal information has the same meaning as in the Privacy Act 1988.
produce includes permit access to.
protected document means a document given or produced (whether before or after the
commencement of this section) under, or for the purposes of, a prudential regulation
framework law and containing information relating to the affairs of:

(a)  a financial sector entity; or

(b)  a body corporate (including a body corporate that has ceased to exist) that has at
any time been, or is, related (within the meaning of the Corporations Act 2001) to a
body regulated by APRA or to a registered entity; or

(c)  a person who has been, is, or proposes to be, a customer of a body regulated by
APRA or of a registered entity; or

(ca)  a person in relation to whom information is, or was, required to be given under a
reporting standard made in accordance with subsection 13(4A) of the Financial
Sector (Collection of Data) Act 2001; or

(cb)  a person in relation to whom information is, or was, required to be given under
Part IIAA of the Banking Act 1959;
other than:

(d)  a document containing information that has already been lawfully made available
to the public from other sources; or

(e)  a document given or produced under, or for the purposes of, a provision of the
Superannuation Industry (Supervision) Act 1993:

(i)  administered by the Commissioner of Taxation; or

(ii)  being applied for the purposes of the administration of a provision
administered by the Commissioner of Taxation.
It also includes a document that is given to APRA under Part 7.5A of the Corporations
Act 2001, other than a document containing information that has already been lawfully
made available to the public from other sources.

protected information means information disclosed or obtained (whether before or after
the commencement of this section) under, or for the purposes of, a prudential regulation
framework law and relating to the affairs of:

(a)  a financial sector entity; or

(b)  a body corporate (including a body corporate that has ceased to exist) that has at
any time been, or is, related (within the meaning of the Corporations Act 2001) to a
body regulated by APRA or to a registered entity; or

(c)  a person who has been, is, or proposes to be, a customer of a body regulated by
APRA or of a registered entity; or

(ca)  a person in relation to whom information is, or was, required to be given under a
reporting standard made in accordance with subsection 13(4A) of the Financial
Sector (Collection of Data) Act 2001; or

(cb)  a person in relation to whom information is, or was, required to be given under
Part IIAA of the Banking Act 1959;
other than:

(d)  information that has already been lawfully made available to the public from other
sources; or

(e)  information given or produced under, or for the purposes of, a provision of the
Superannuation Industry (Supervision) Act 1993:

(i)  administered by the Commissioner of Taxation; or

(ii)  being applied for the purposes of the administration of a provision
administered by the Commissioner of Taxation.
It also includes information that is given to APRA under Part 7.5A of the Corporations
Act 2001, other than information that has already been lawfully made available to the
public from other sources.
registered entity means a corporation that is, or has at any time been, a registered entity
within the meaning of the Financial Sector (Collection of Data) Act 2001.

(2)  A person who is or has been an officer commits an offence if:

(a)  the person directly or indirectly:

(i)  discloses information acquired in the course of his or her duties as an officer
to any person or to a court; or

(ii)  produces a document to any person or to a court; and

(b)  the information is protected information, or the document is a protected document;
and

(c)  the disclosure or production is not in accordance with subsection (3), (4), (5),
(5AA), (5A), (5B), (5C), (6), (7), (7A), (7B), (7C), (7D), (7E) or (7F).
Penalty:  Imprisonment for 2 years.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(3)  It is not an offence if the disclosure of protected information or the production of a
protected document by a person is for the purposes of a prudential regulation framework
law.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (3) (see
subsection 13.3(3) of the Criminal Code).

(4)  It is not an offence if the disclosure of protected information or the production of a
protected document by a person:

(a)  is by an employee of the person to whose affairs the information or document
relates; or

(b)  occurs after the person to whose affairs the information or document relates has
agreed in writing to the disclosure or production.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (4) (see
subsection 13.3(3) of the Criminal Code).

(5)  It is not an offence if the disclosure of protected information or the production of a
protected document by a person:

(a)  occurs when the person is satisfied that the disclosure of the information, or the
production of the document, will assist a financial sector supervisory agency, or
any other agency (including foreign agencies) specified in the regulations, to
perform its functions or exercise its powers and the disclosure or production is to
that agency; or

(aa)  occurs when the person is satisfied that the disclosure of the information, or the
production of the document, will assist the operator of the AFCA scheme (within
the meaning of Chapter 7 of the Corporations Act 2001) to perform its functions or
exercise its powers, and the disclosure or production is to that operator; or

(b)  is to another person and is approved by APRA by instrument in writing.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (5) (see
subsection 13.3(3) of the Criminal Code).

(5AA)  It is not an offence if the disclosure of protected information or the production of a
protected document is made:

(a)  by an officer of an agency to which the information or document has been
disclosed or produced under paragraph (5)(a); and

(b)  for the same purpose as the information or document was so disclosed or produced
to that agency.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (5AA) (see
subsection 13.3(3) of the Criminal Code).

(5A)  It is not an offence if the production by a person of a document that was given to APRA
under section 9 or 13 of the Financial Sector (Collection of Data) Act 2001 is to the
Australian Statistician for the purposes of the Census and Statistics Act 1905.
Note:
A defendant bears an evidential burden in relation to matters in subsection (5A) (see
subsection 13.3(3) of the Criminal Code).

(5B)  It is not an offence if the production by a person of a document that was given to APRA
under section 9 or 13 of the Financial Sector (Collection of Data) Act 2001 is to:

(a)  the Reserve Bank of Australia; or

(b)  another prescribed authority.
Note:
A defendant bears an evidential burden in relation to matters in subsection (5B) (see
subsection 13.3(3) of the Criminal Code).

(5C)  If:

(a)  a document is a reporting document given to APRA under section 13 of the
Financial Sector (Collection of Data) Act 2001; and

(b)  either:

(i)  a determination has been made under section 57 that the document does not,
or documents of that kind do not, contain confidential information; or

(ii)  a determination has been made under section 57 that a specified part of the
document, or of documents of that kind, does not contain confidential
information;
it is not an offence to disclose the document or that part of the document, or any
information contained in the document or that part of the document, to any person

(including by making the document, the part of the document or the information
available on APRA’s website).

(5D)  It is not an offence if the production by a person of a document that was given to APRA
under section 13 of the Financial Sector (Collection of Data) Act 2001 is to the
Commissioner of Taxation for the purposes of the Major Bank Levy Act 2017 (including
the administration of that Act).
Note:
A defendant bears an evidential burden in relation to matters in subsection (5D) (see
subsection 13.3(3) of the Criminal Code).

(6)  It is not an offence if the disclosure of protected information or the production of a
protected document is to:

(a)  an APRA member; or

(b)  an APRA staff member;
for the purposes of the performance of APRA’s functions, or the exercise of APRA’s
powers, under a law of the Commonwealth or of a State or a Territory.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (6) (see
subsection 13.3(3) of the Criminal Code).

(6A)  It is not an offence if the disclosure of protected information or the production of a
protected document is to:

(a)  an auditor who has provided, or is providing, professional services to a general
insurer, authorised NOHC or a subsidiary of a general insurer or authorised NOHC;
or

(b)  an actuary who has provided, or is providing, professional services to a general
insurer, authorised NOHC or a subsidiary of a general insurer or authorised NOHC;
and the disclosure is for the purposes of the performance of APRA’s functions, or the
exercise of APRA’s powers, under a law of the Commonwealth or of a State or Territory.

(7)  It is not an offence if the information, or the information contained in the document, as
the case may be, is in the form of a summary or collection of information that is prepared
so that information relating to any particular person cannot be found out from it.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7) (see
subsection 13.3(3) of the Criminal Code).

(7A)  It is not an offence if the information, or the information contained in the document, as
the case may be, is all or any of the following:

(a)  the names of bodies that are regulated by APRA;

(b)  the addresses at which bodies referred to in paragraph (a) conduct business;

(c)  any other information that is reasonably necessary to enable members of the public
to contact persons who perform functions in relation to bodies referred to in
paragraph (a).
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7A) (see
subsection 13.3(3) of the Criminal Code).

(7B)  It is not an offence if the information, or the information contained in the document, as
the case may be, is:

(a)  a statement of APRA’s opinion as to whether or not a body regulated by APRA is
complying, or was complying at a particular time, with a particular provision of a
prudential regulation framework law; or

(b)  a description of:

(i)  court proceedings in relation to a breach or suspected breach by a person of a
provision of a prudential regulation framework law; or

(ii)  activity engaged in, or proposed to be engaged in, by APRA in relation to
such a breach or suspected breach; or

(c)  a description of action under a prudential regulation framework law that APRA has
taken or is proposing to take in relation to:

(i)  a body regulated by APRA; or

(ii)  an individual who holds or has held a position with or in relation to such a
body.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7B) (see
subsection 13.3(3) of the Criminal Code).

(7C)  If information referred to in subsection (7A) or paragraph (7B)(a) that relates to a body
that is, or has at any time been, regulated by APRA under the Superannuation Industry
(Supervision) Act 1993 is disclosed to the Registrar of the Australian Business Register
established under section 24 of the A New Tax System (Australian Business Number) Act
1999, the Registrar may enter the information in that Register.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7C) (see
subsection 13.3(3) of the Criminal Code).

(7D)  It is not an offence if:

(a)  the disclosure of protected information or the production of a protected document is
to an ADI (within the meaning of the Banking Act 1959); and

(b)  the information, or the information contained in the document, as the case may be,
is information contained in the register kept under section 37H of the Banking Act
1959.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7D) (see
subsection 13.3(3) of the Criminal Code).

(7E)  It is not an offence if:

(a)  the disclosure of protected information or the production of a protected document is
to an individual; and

(b)  the information, or the information contained in the document, as the case may be,
is only personal information about the individual; and

(c)  the information, or the information contained in the document, as the case may be,
is information contained in the register kept under section 37H of the Banking Act
1959.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7E) (see
subsection 13.3(3) of the Criminal Code).

(7F)  It is not an offence if:

(a)  the disclosure of protected information or the production of a protected document is
by APRA; and

(b)  the information, or the information contained in the document, as the case may be,
is information that discloses:

(i)  whether a person is disqualified under section 37J of the Banking Act 1959; or

(ii)  a decision made under Subdivision C of Division 6 of Part IIAA of that Act,
or the reasons for such a decision.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (7F) (see
subsection 13.3(3) of the Criminal Code).

(8)  A person who is, or has been, an officer cannot be required to disclose to a court any
protected information, or to produce in a court a protected document, except when it is
necessary to do so for the purposes of a prudential regulation framework law.

(9)  If a person discloses information or produces a document under this section to another
person, the first person may, at the time of the disclosure, impose conditions to be
complied with in relation to the information disclosed or the document produced.

(10)  A person commits an offence if the person fails to comply with a condition imposed
under subsection (9).
Penalty:  Imprisonment for 2 years.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(11)  A document that:

(a)  is a protected document; or

(b)  contains protected information;
is an exempt document for the purposes of section 38 of the Freedom of Information Act
1982.
Note:
For additional rules about personal information, see the Privacy Act 1988.

(12)  A disclosure of personal information is taken to be authorised by this Act for the
purposes of paragraph 6.2(b) of Australian Privacy Principle 6 if:

(a)  the information is protected information and the disclosure is made in accordance
with any of subsections (4), (5), (5AA), (6), (7A), (7B), (7C), (7D), (7E) and (7F);
or

(b)  the information is contained in a protected document and the disclosure is made by
the production of the document in accordance with any of those subsections.