INTERNAL REVIEW DECISION
Applicant:
Phil ip Sweeney
Decision-maker:
Evelyn Ong, an authorised officer of the Australian Prudential
Regulation Authority (APRA) for the purposes of subsection
23(1) of the Freedom of Information Act 1982 (FOI Act).
FOI reference:
FOI 21-72
Decision:
Affirm the original decision to refuse access to the relevant
documents.
SUMMARY
1.
On 2 June 2021 you made the fol owing FOI request:
‘The document or documents I seek is correspondence from APRA to IOOF
confirming that APRA had granted such approval including any conditions that
applied to the approval.’
(the original FOI request)
2.
On 30 June 2021, APRA made the decision to refuse access to three documents on the
basis of section 38 of the FOI Act (the original FOI decision).
3.
On 17 July 2021, APRA received your email request for an internal review of the original
FOI decision (the internal review application).
MATERIAL TAKEN INTO ACCOUNT
4.
I relied on the fol owing evidence and material in making my decision:
a)
the original FOI request dated 2 June 2021;
b)
acknowledgment of FOI request from FOI Officer to the Applicant dated 3 June
2021;
c)
email correspondence between APRA staff between 4 June 2021 and 9 June
2021;
d)
the original FOI decision;
e)
the internal review application;
f)
memorandum from FOI Officer dated 11 August 2021;
g)
relevant sections of the Australian Prudential Regulation Authority Act 1998 (Cth)
(APRA Act);
h)
relevant sections of the FOI Act; and
i)
guidelines issued by the Office of the Australian Information Commissioner to date
(FOI Guidelines).
DECISION
5.
I have decided to affirm the original FOI decision to refuse access to the relevant
documents under section 38 of the FOI Act and section 56 of the APRA Act. My reasons
for the refusal are as fol ows:
REASONS
6.
I reproduce relevant paragraphs of the original FOI decision:
‘APRA has conducted al reasonable searches of its records and identified three
documents relevant to your FOI request (relevant documents).
REASONS
I have decided to refuse access to the relevant documents under section 38 of the
FOI Act and section 56 of the APRA Act. My reasons for refusal are as fol ows:
Secrecy Provisions
I have taken the fol owing approach in applying section 38 of the FOI Act and
section 56 of the APRA Act:
i. 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;
i . 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;
i i. under subsection 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;
iv. a “protected document” is defined in subsection 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 Banking Act 1959 (Cth) is a prudential regulation
framework law. The relevant documents were given or produced and disclosed or
obtained under, or for the purposes of, this prudential regulation framework law.
Therefore, the documents are protected documents unless otherwise publicly
available;
v. “protected information” is defined in subsection 56(1) of the APRA Act to include
information disclosed or obtained under or for the purposes of a prudential
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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regulation framework law, and relating to the affairs of a financial sector entities.
For the same reasons set out in paragraph (iv) above, information contained in the
documents is protected, unless otherwise publicly available; and
vi. the information and the documents are not otherwise publicly available.
I am satisfied that Documents 1-3 are protected documents, and/or contain
protected information as defined in subsection 56(1) of the APRA Act and that the
documents are consequently exempt under section 38 of the FOI Act.
An extract of section 38 of the FOI Act and section 56 of the APRA Act are attached
to these reasons
7.
The fol owing statements were made in support of the internal review application:
a) ‘It is a matter of public interest that these documents are made available.’
b) ‘MLC's superannuation trustee, NULIS Nominees (Aust) Ltd was found by the
Federal Court to have failed in its duty's as Trustee {Australian Securities and
Investments Commission v MLC Nominees Pty Ltd & NULIS Nominees (Aust) Ltd
[2020] FCA 1306} On 20 September 2019, the Federal Court of Australia delivered
its much-anticipated judgment in the highly publicised proceedings brought by APRA
against IOOF's Chairman, Managing Director, three senior executives and two
trustee entities for al eged breaches of the SIS Act. Jones Day acted for the former
Chairman, Mr George Venardos.’
c) ‘Justice Jayne Jagot ordered that the entirety of APRA's application be dismissed
and that APRA pay the respondents' legal costs.’
d) ‘The judgment was a resounding win by IOOF and the individual respondents.’
8.
I have considered your statements and reviewed al relevant documentation.
9.
Subsection 56(11) of the Australian Prudential Regulation Authority Act 1998 provides
that a protected document is an exempt document for the purposes of section 38 of the
FOI Act.
10. The relevant documents have not been lawful y made available to the public from other
sources. Documents 1-3 were given or produced for the purposes of a prudential
regulation framework law, namely the Banking Act 1959 (Cth). It is clear that Documents
1-3 are protected documents. I affirm the original FOI decision to refuse access to the
relevant documents.
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 fol owing ways:
Online
Complete and lodge the online review form at:
https://www.oaic.gov.au/freedom-of-information/reviews-
and-complaints/information-commissioner-review/
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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Post
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
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/
Evelyn Ong
FOI Officer
Australian Prudential Regulation Authority
13 August 2021
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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Document Schedule
Document
Description
Exemption(s)
Access
No.
1
Exempt document
section 38
Refused
2
Exempt document
section 38
Refused
3
Exempt document
section 38
Refused
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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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
(i ) 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
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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
(Col ection 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
(i ) 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 (Col ection of Data) Act 2001;
other than:
(d) a document containing information that has already been lawful y 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
(i ) 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 lawful y 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 (Col ection of Data) Act 2001;
other than:
(d) information that has already been lawful y 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
(i ) 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 lawful y
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 (Col ection 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
(i ) 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
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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(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, wil 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 (Col ection 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 (Col ection 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 (Col ection 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
(i ) 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
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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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 col ection 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 al or any of the fol owing:
(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
(i ) activity engaged in, or proposed to be engaged in, by APRA in relation
to such a breach or suspected breach; or
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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(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
(i ) 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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