FOI 21-1
10 August 2020
Phillip Sweeney
Right to Know
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Sweeney,
NOTICE OF DECISION UNDER THE FREEDOM OF INFORMATION ACT 1982 (CTH)
(FOI ACT) WITH REASONS
Applicant:
Phillip Sweeney
Decision-maker:
Ann Quinlan, an authorised officer of the Australian
Prudential Regulation Authority (APRA) for the purposes of
section 23(1) of the FOI Act.
FOI Request:
“The documents I seek are any correspondence between
either trustee and APRA related to the change in trustee from
National Australia Bank Superannuation Fund Pty Ltd to PFS
Nominees Pty Ltd and the change in fund status from ‘not-for-
profit’ to ‘for-profit’.” (‘the FOI request’).
My decision:
Refuse access to Documents 1-14 based on the reasons.
FACTS
1.
On 7 July 2020, you made the FOI request by email under the FOI Act.
2.
On 8 July 2020, APRA acknowledged receipt of your request by email.
3.
On 5 August 2020, APRA extended the decision date with your consent until 16 August
2020 by email under the FOI Act.
EVIDENCE AND MATERIAL RELIED ON
4.
I relied on the following in making my decision:
a.
the Applicant’s request received by APRA on 7 July 2020;
b.
acknowledgment email from FOI Officer to the Applicant dated 8 July 2020;
c.
email correspondence between APRA staff between 24 July – 3 August 2020;
d.
relevant sections of the
Australian Prudential Regulation Authority Act 1998 (Cth)
(‘the APRA Act’)
;
e.
relevant sections of the FOI Act; and
f.
guidelines issued by the Office of the Australian Information Commissioner to date
(‘the FOI Guidelines’).
REASONS
5.
APRA conducted all reasonable searches and identified 14 documents relevant to the
FOI request.
6.
I refused access to Documents 1-14 following application of the following exemptions in
the FOI Act:
a.
section 38: Documents 1-14 contain “protected information” under section 56 of
the APRA Act;
b.
section 47C: Document 1 contains deliberative matter relating to an opinion,
advice or recommendation or a consultation or deliberation for the purposes of a
deliberative process of APRA;
c.
section 47E(d): Documents 1, 3, 6, 9, 10, 12 contain information that, if disclosed,
would, or could reasonably be expected to, have a substantial adverse effect on
the proper and efficient conduct of APRA’s operations.
Secrecy Provision
7.
I have taken the following approach in applying section 38 of the FOI Act:
a.
a document is exempt under section 38 of the FOI Act 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 applies section 38 of the FOI Act so a
document that is a “protected document” or contains “protected information” within
the meaning of subsection 56(1) of the APRA Act is an exempt document under
section 38 of the FOI Act.
c.
it is an offence under section 56(2) of the APRA Act to directly or indirectly disclose
protected information or produce a protected document, unless a specified
exemption applies. This offence provision is binding on APRA staff members. 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.
e. The
Superannuation Industry (Supervision) Act 1993 and the APRA Act are
prudential regulation framework laws.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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f.
Documents 1-14 were given and disclosed for the purposes of APRA regulating
bodies in the financial sector in accordance with the laws that provide for prudential
regulation, namely the APRA Act and the
Superannuation Industry (Supervision)
Act 1993.
g.
As the protected information in Documents 1-14 has not already been lawfully
made available to the public from other sources, Documents 1-14 are protected
documents.
8.
I am satisfied Documents 1-14 are protected documents as defined in section 56(1) of
the APRA Act and Documents 1-14 are exempt documents for the purposes of section
38 of the FOI Act.
Deliberative processes
9.
Paragraph 47C(1)(a) of the FOI Act provides that a document is conditionally exempt if
its disclosure under the Act would disclose matter in the nature of, or relating to, opinion,
advice or recommendation obtained, prepared or recorded, or consultation or
deliberation that has taken place, in the course of, or for the purposes of, the deliberative
processes involved in the functions of APRA.
10. Paragraph 6.61 of the FOI Guidelines prescribes that a deliberative process may include
‘the recording or exchange of opinions, advice, recommendations, a collection of facts
or opinions, and interim decisions or deliberations’.
11. Document 1 contains information that falls within the definition of deliberative matter.
Document 1 contains APRA’s opinions and advice in relation to prudential regulation.
12. Document 1 was prepared for the purposes of APRA’s deliberative processes and that
the information in Document 1 is considered deliberative matter and is conditionally
exempt under section 47C of the FOI Act.
Operations of agencies
13. Paragraph 47E(d) of the FOI Act conditionally exempts documents where disclosure
would, or could reasonably be expected to, have a substantial adverse effect on the
proper and efficient conduct of APRA’s operations.
14. Paragraph 6.96 of the FOI Guidelines provides, for the exemption to apply, that
disclosure of the documents would or could reasonably be expected to ‘prejudice or
have a substantial adverse effect on certain listed agency operations’.
15. Documents 1, 3, 6, 9, 10, 12 contain information regarding the operations of APRA.
Should the documents be released, APRA’s ability to perform its operations may
become limited and have a substantial adverse effect on the proper and efficient conduct
of APRA. In light of the above factors, Documents 1, 3, 6, 9, 10, 12 are conditionally
exempt under paragraph 47E(d) of the FOI Act.
Application of the public interest test
16. I reviewed the FOI Act and FOI Guidelines and consider the following factors favouring
the disclosure of the documents would apply, as disclosure would or could reasonably
be expected to: ‘
a.
promote the objects of the FOI Act;
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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b.
inform debate on a matter of public importance; and
c.
reveal the context and reasons for APRA’s decisions.
17. I considered the following factors against release would apply, as disclosure would or
could reasonably be expected to:
a.
prejudice APRA’s ability to obtain information from bodies or entities subject to
APRA’s supervision, as bodies regulated by APRA may be less willing to disclose
information with APRA if they were aware that that information were to be made
publicly available;
b.
have an adverse effect on the lawful business or commercial affairs of various
bodies regulated by APRA; and
c.
inhibit the ability of APRA to provide frank and complete information or advice on
similar matters in the future.
18. I did not take any of the irrelevant factors listed in subsection 11B(4) of the FOI Act into
account in determining whether access to the documents would, on balance, be contrary
to the public interest.
19. On balance, the public interest factors against release outweigh the public interest
factors in favour of release of Documents 1, 3, 6, 9, 10, 12 as the harm to APRA’s ability
to obtain information may be prejudiced and have a substantial adverse effect on
APRA’s deliberative processes in relation to prudential supervision.
RIGHTS OF REVIEW
Application for Internal Review of Decision
20. Under 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 the review and make a fresh decision on
the merits of the case.
21. Under 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.
22. You do not have to pay any other fees or processing charges for an internal review,
except fees and charges applicable for providing access to further material in the
document released, if any, as a result of the review (for example, photocopying,
inspection, etc).
23. 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.
24. Application for an internal review of the decision should be addressed to:
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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FOI
Officer
Australian Prudential Regulation Authority
GPO Box 9836, Sydney NSW 2001
Telephone:
(02) 9210 3000
Facsimile:
(02) 9210 3411
25. 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 the Information Commissioner
26. Under 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.
27. 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.
28. An application for review by the Information Commissioner may be lodged in the
following ways:
Online
Complete and lodge the online review form at:
https://www.oaic.gov.au/freedom-of-information/reviews-
and-complaints/information-commissioner-review/
Post
Director of FOI Dispute Resolution
GPO Box 5218, Sydney NSW 2001
Email
xxxxx@xxxx.xxx.xx
Facsimile
(02) 9284 9666
Delivered in person
Office of the Australian Information Commissioner
Level 3, 175 Pitt Street
Sydney NSW 2000
Review by Administrative Appeals Tribunal
29. 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 the
Information Commissioner’s decision by the Administrative Appeals Tribunal (AAT).
30. 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.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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Complaints
31. You may complain to the Information Commissioner concerning action taken by APRA
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.
32. You may complain to the Information Commissioner either orally or in writing, by any of
the methods outlined above, or by telephone, on 1300 363 992.
Ann Quinlan
FOI Officer
Australian Prudential Regulation Authority
Date: 10 August 2020
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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Schedule
Doc
Description Exemption(s)
Access
No.
1
Exempt document
section 38, 47C, Refused
47E(d)
2
Exempt document
section 38
Refused
3
Exempt document
section 38, 47E(d) Refused
4
Exempt document
section 38
Refused
5
Exempt document
section 38
Refused
6
Exempt document
section 38, 47E(d) Refused
7
Exempt document
section 38
Refused
8
Exempt document
section 38
Refused
9
Exempt document
section 38, 47E(d) Refused
10
Exempt document
section 38, 47E(d) Refused
11
Exempt document
section 38
Refused
12
Exempt document
section 38, 47E(d) Refused
13
Exempt document
section 38
Refused
14
Exempt document
section 38
Refused
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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FREEDOM OF INFORMATION ACT 1982
11B Public interest exemptions—factors
Scope
(1) This section applies for the purposes of working out whether access to a
conditionally exempt document would, on balance, be contrary to the public
interest under subsection 11A(5).
(2) This section does not limit subsection 11A(5).
Factors favouring access
(3) Factors favouring access to the document in the public interest include whether
access to the document would do any of the following:
(a) promote the objects of this Act (including all the matters set out in
sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
Irrelevant factors
(4) The following factors must not be taken into account in deciding whether access
to the document would, on balance, be contrary to the public interest:
(a) access to the document could result in embarrassment to the
Commonwealth Government, or cause a loss of confidence in the
Commonwealth Government;
(b) access to the document could result in any person misinterpreting or
misunderstanding the document;
(c) the author of the document was (or is) of high seniority in the agency to
which the request for access to the document was made;
(d) access to the document could result in confusion or unnecessary debate.
Guidelines
(5) In working out whether access to the document would, on balance, be contrary
to the public interest, an agency or Minister must have regard to any guidelines
issued by the Information Commissioner for the purposes of this subsection
under section 93A.
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.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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(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.
47C Public interest conditional exemptions—deliberative processes
General rule
(1) A document is conditionally exempt if its disclosure under this Act would disclose
matter (
deliberative matter) in the nature of, or relating to, opinion, advice or
recommendation obtained, prepared or recorded, or consultation or deliberation
that has taken place, in the course of, or for the purposes of, the deliberative
processes involved in the functions of:
(a) an agency; or
(b) a Minister; or
(c) the Government of the Commonwealth; or
(d) the Government of Norfolk Island.
Exceptions
(2) Deliberative matter does not include either of the following:
(a) operational information (see section 8A);
(b) purely factual material.
Note:
An agency must publish its operational information (see section 8).
(3) This section does not apply to any of the following:
(a) reports (including reports concerning the results of studies, surveys or
tests) of scientific or technical experts, whether employed within an agency
or not, including reports expressing the opinions of such experts on
scientific or technical matters;
(b) reports of a body or organisation, prescribed by the regulations, that is
established within an agency;
(c) the record of, or a formal statement of the reasons for, a final decision
given in the exercise of a power or of an adjudicative function.
Note:
Access must generally be given to a conditionally exempt document unless it
would be contrary
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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47E Public interest conditional exemptions—certain operations of agencies
A document is conditionally exempt if its disclosure under this Act would, or
could reasonably be expected to, do any of the following:
(a) prejudice the effectiveness of procedures or methods for the conduct of
tests, examinations or audits by an agency;
(b) prejudice the attainment of the objects of particular tests, examinations or
audits conducted or to be conducted by an agency;
(c) have a substantial adverse effect on the management or assessment of
personnel by the Commonwealth, by Norfolk Island or by an agency;
(d) have a substantial adverse effect on the proper and efficient conduct of the
operations of an agency.
Note:
Access must generally be given to a conditionally exempt document unless it
would be contrary to the public interest (see section 11A).
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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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;
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.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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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:
(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.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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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).
(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).
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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(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
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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(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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