Internal review decision made under the Freedom of Information Act 1982
Applicant:
Phillip Sweeney
Decision-maker:
Ben (person number 2355), an authorised officer of the
Australian Prudential Regulation Authority (APRA) for the
purposes of section 23(1) of the
Freedom of Information Act
1982 (‘FOI Act’).
FOI reference:
FOI 20 – 11
Decision:
Grant access to the document listed in the Schedule.
Affirm the original FOI decision to refuse
access to the other
documents subject to your request because the documents
could not be found or do not exist.
Summary
1.
On 9 August 2019 you made the following FOI request:
“The documents I seek are:
(i) a copy of the letter provided to APRA by Nicholas Brookes, the then CEO of
Corporate Combined Superannuation (CCSL Ltd) {RSE Licence L0000758}, the then
purported corporate trustee of this regulated superannuation fund (R 1004830); and
(ii) copies of all the documents which were attached to this letter signed by Mr
Brookes.”
(‘your original FOI request’)
2.
On 4 October 2019 APRA made the decision to refuse access to the documents on the
basis of section 24A of the FOI Act in response to your original FOI request (‘the original
FOI decision’).
3.
On 10 October 2019 APRA received your email request for an internal review of APRA’s
original FOI decision (‘the internal review application’).
Material taken into account
4.
I relied on the following evidence and material in making my decision:
a)
your original FOI request;
b)
acknowledgment of FOI request from FOI Officer to the Applicant dated 9 August
2019;
c)
email correspondence between APRA staff between 26 August and 4 September
2019 and 4 October 2019;
d)
file note dated 4 October 2019;

e)
notice of decision dated 4 October 2019;
f)
the internal review application;
g)
memorandum from FOI Officer dated 4 November 2019;
h)
relevant sections of the
Australian Prudential Regulation Authority Act 1998 (Cth)
(APRA Act)
;
i)
relevant sections of the FOI Act; and
j)
guidelines issued by the Office of the Australian Information Commissioner to date
(FOI Guidelines).
Reasons
5.
Paragraphs of the original FOI decision are reproduced below:
“
APRA has conducted all reasonable searches of its records in order to identify all
documents relevant to your FOI request (relevant documents).
I have decided to refuse access to the relevant documents for the following reason:
Documents cannot be found, do not exist or have not been received.
Based on the information before me, APRA has taken all reasonable steps to locate
the documents relevant to the request and I am satisfied that the documents cannot
be found/do not exist. Accordingly, I refuse access under section 24A of the FOI Act.”
6.
You made the following statement in support of your internal review application:
“
I have a copy of the letter from Mr Nicholas Brookes to APRA dated 24 June 2010
which lists the attached documents numbered 1 to 7.
Documents listed at item 5 were:
(a) Rules dated 19 August 1985 (b) Amendments dated 26 August 1986 (c) Amendments dated 15 December 1986 (d) Register of executed deeds
Therefore APRA must have in its possession a copy of these documents otherwise
they have been deliberately destroyed.”
7.
I considered your statement in detail and reviewed all relevant documentation and the
process of investigation undertaken by the FOI Officer. I identified an additional
document in making the internal review decision. I have decided to grant you access to
the document set out in the schedule.
8.
In relation to the other documents subject to your request, I am satisfied APRA
conducted all reasonable searches of its records in order to locate these documents
having regard to:
a)
APRA’s record management systems and practices;
b)
the areas within APRA who are able to assist with the location of these documents;
and
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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c)
the current and past file management systems and the practice of orderly
destruction or removal of documents.
9.
APRA undertook searches of its file index and searches of its electronic file systems.
APRA also circulated emails internally to relevant areas requesting they conduct
searches of their respective file systems.
10. Following these searches, these documents cannot be found, do not exist or have not
been received. I have affirmed the remainder of the original FOI decision to refuse
access to the other documents subject to your request because the documents could
not be found or do not exist.
Rights of review
11. Under section 54L of the FOI Act, you have the right to apply to the OAIC for a review
of my decision. The application for review by the OAIC must be made in writing within
60 days of the date of this letter, and be lodged in one of the following ways:
Online
https://forms.business.gov.au/aba/oaic/foi-review-/
Post
GPO Box 5218, Sydney NSW 2001
Email
xxxxx@xxxx.xxx.xx
Facsimile
(02) 9284 9666
Street address
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street
Sydney NSW 2000
12. More information about your review rights under the FOI Act is available here:
https://www.oaic.gov.au/freedom-of-information/foi-guidelines/part-10-review-by-the-
information-commissioner/
Ben (person number 2355)
FOI Officer
11 November 2019
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Schedule
Doc
Description
Exemption(s)
Access
No.
1
Letter
Granted
FREEDOM OF INFORMATION ACT 1982
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).
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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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.
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.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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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;
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;
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:
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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(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 is guilty of 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) or (7C).
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
(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).
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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(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).
(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).
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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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).
(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 is guilty of 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) and (7C); 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.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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Document Outline