FOI 22-45
8 March 2022
Trent Morrison-Francis
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Morrison-Francis,
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:
Trent Morrison-Francis
Decision-maker:
Kathryn Petrie, an authorised officer of the Australian
Prudential Regulation Authority (
APRA) for the purposes of
subsection 23(1) of the FOI Act.
FOI request:
‘Please take this request for any documents that your
department holds in relation to any "Exemptions" or "Wavers" as
defined by the Webster Dictionary or socially accepted
definitions of the words in the country of Australia to comply with
any legislation that your office has powers, authority or manages
under legislation for its management as a superannuation
provider.
To remove any doubt we are asking for all schemes that
Commonwealth
Superannuation
Corporation
manages
including
CSS
ABN: 19 415 776 361
RSE: R1004649
DFRDB
ABN: 39 798 362 763
Military Super
ABN: 50 925 523 120
RSE: R1000306
ADF Super
ABN: 90 302 247 344
RSE R1077063
ADF Cover
ABN: 64 250 674 722
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
1
The period for the request relates to all documents created on or
after the 01st January 2017 by either your office and or the
Commonwealth Superannuation Corporation (where practicable
if your office is not the creator of the documents).’
(
FOI request)
My decision:
Refuse access to the relevant documents based on the
reasons outlined in this Notice of Decision.
MATERIAL FACTS
1.
On 7 January 2022, you made the FOI request by email under the FOI Act.
2.
On 7 January 2022, APRA acknowledged receipt of the request by email.
3.
On 3 February 2022, the Office of the Australian Information Commissioner extended
the decision date under section 15AB of the FOI Act until 8 March 2022.
EVIDENCE AND MATERIAL RELIED ON
4.
In making my decision, I have relied on the following evidence and material:
a.
the Applicant’s request received by APRA on 7 January 2022;
b.
acknowledgment email from FOI Officer to the Applicant dated 7 January 2022;
c.
internal APRA email correspondence from 7 January 2022 to 7 March 2022;
d.
relevant sections of the
Australian Prudential Regulation Authority Act 1998 (Cth)
(
APRA Act)
;
e.
relevant sections of the FOI Act; and
f.
guidelines issued by the Office of the Australian Information Commissioner to date
(
FOI Guidelines).
5.
APRA has conducted all reasonable searches of its records and identified 173
documents relevant to your FOI request (
relevant documents).
REASONS
6.
I have decided to grant access to documents 13, 24, 25, 26, 36, 39 and 60 (the
Released
Documents) under subsection 11A(3) of the FOI Act. While access is being granted to
7 documents, Documents 13 and 25 and Documents 36, 39 and 60 are duplicate
documents so access is being granted to 4 documents in total.
7.
I have decided to refuse access to the remaining relevant documents. My reasons for
the refusal are as follows:
a. section 38: All documents except the Released Documents contain ‘protected
information’ for the purposes of section 56 of the APRA Act; and
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
2

b. section 47C: 56 documents (which are identified in the document schedule)
contain deliberative matter relating to an opinion, advice or recommendation or
consultation or deliberation for the purposes for the deliberative processes of
an agency.
Secrecy provisions
8.
I have taken the following 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;
ii.
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;
iii.
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
Superannuation Industry (Supervision) Act 1993 and the
Financial Sector (Collection of Data) Act 2001 are prudential regulation framework
laws. The relevant documents were provided or produced and disclosed or
obtained under, or for the purposes of, these prudential regulation framework laws.
Therefore, the documents are protected documents unless 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
regulation framework law, and relating to the affairs of a financial sector entities.
For the reasons outlined in paragraph (iv) above, information contained in the
documents is protected, unless publicly available; and
vi.
the information and the documents are not otherwise publicly available.
9.
I have determined that the documents are protected documents, and/or contain
protected information as defined in subsection 56(1) of the APRA Act. The documents
are consequently exempt under section 38 of the FOI Act.
10. An extract of section 38 of the FOI Act and section 56 of the APRA Act are attached to
these reasons.
Deliberative processes
11. Subsection 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
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
3

deliberation that has taken place, in the course of, or for the purposes of, the deliberative
processes involved in the functions of an agency.
12. 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’.
13. The relevant documents contain information that falls within the definition of deliberative
matter. The relevant documents contain exchanges of APRA’s opinions, advice and
recommendations. I consider this information to have been prepared for the purposes
of deliberative processes. Paragraph 6.56 of the FOI Guidelines provides that I am not
required to consider whether harm would result from disclosure. The information in the
documents is considered deliberative matter, therefore conditionally exempt under
section 47C of the FOI Act.
14. An extract of section 47C of the FOI Act is attached to these reasons.
Application of the public interest test
15. I have reviewed the FOI Act and FOI Guidelines and consider the following factors
favouring the disclosure of the document would apply, as disclosure would or could
reasonably be expected to:
a)
promote the objects of the FOI Act; and
b)
reveal the context and reasons for APRA’s decisions.
16. I have also considered the following factors against release would apply, as disclosure
would or could reasonably be expected to:
a.
prejudice the conduct of APRA’s policy development and decision-making
processes;
b.
have a substantial and adverse effect on the proper and efficient conduct of
APRA’s operations;
c.
prejudice APRA’s ability to obtain similar information from bodies or entities
subject to APRA’s supervision, as entities may be less wil ing to share information
with APRA if they are aware that that information were to be made publicly
available; and
d.
inhibit the ability of APRA to provide frank and complete information or advice on
similar matters in the future.
17. I have not considered any of the irrelevant factors listed in subsection 11B(4) of the FOI
Act in determining whether access to the documents would, on balance, be contrary to
the public interest.
18. In my view, on balance, the public interest factors against release outweigh the public
interest factors in favour of release of the relevant documents as the documents contain
deliberative matter that was prepared, recorded or obtained for the purposes of the
deliberative processes of APRA, and disclosure could reasonably be expected to have
a substantial adverse effect on the proper and efficient conduct of APRA’s operations.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
4
RIGHTS OF REVIEW
Application for Internal Review of decision
19. 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.
20. 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.
21. 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, if any, in the
document(s) released as a result of the review (for example, photocopying, inspection,
etc).
22. 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.
23. An application for 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
24. If you make an application for internal review and we do not make a decision within 30
days of receiving the application, we are 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
25. 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.
26. 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.
27. An application for review by the Information Commissioner may be lodged with one of
the following:
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
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
5

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
Application for review by Administrative Appeals Tribunal
28. 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).
29. 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
30. 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 Information Commissioner will conduct an independent
investigation of your complaint.
31. 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.
Kathryn Petrie
FOI Officer
Australian Prudential Regulation Authority
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
6
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
4
Exempt document
Sections 38, 47C
Refused
5
Exempt document
Sections 38, 47C
Refused
6
Exempt document
Section 38
Refused
7
Exempt document
Section 38
Refused
8
Exempt document
Sections 38, 47C
Refused
9
Exempt document
Sections 38, 47C
Refused
10
Exempt document
Sections 38, 47C
Refused
11
Exempt document
Section 38
Refused
12
Exempt document
Section 38
Refused
13
Burns and Commissioner of
Granted
Taxation (Taxation) [2020] AATA
671
14
Exempt document
Section 38
Refused
15
Exempt document
Section 38
Refused
16
Exempt document
Section 38
Refused
17
Exempt document
Section 38
Refused
18
Exempt document
Section 38
Refused
19
Exempt document
Section 38
Refused
20
Exempt document
Section 38
Refused
21
Exempt document
Sections 38, 47C
Refused
22
Exempt document
Section 38
Refused
23
Exempt document
Section 38
Refused
24
Douglas and the Commissioner of
Granted
Taxation (Taxation) [2020] AATA
494
25
Burns and Commissioner of
Granted
Taxation (Taxation) [2020] AATA
671
26
GDGR and the Commissioner of
Granted
Taxation (Taxation) [2020] AATA
766
27
Exempt document
Section 38
Refused
28
Exempt document
Section 38
Refused
29
Exempt document
Sections 38, 47C
Refused
30
Exempt document
Section 38
Refused
31
Exempt document
Section 38
Refused
32
Exempt document
Section 38
Refused
33
Exempt document
Section 38
Refused
34
Exempt document
Sections 38, 47C
Refused
35
Exempt document
Sections 38, 47C
Refused
36
Commissioner
of Taxation
v
Granted
Douglas [2020] FCAFC 220
37
Exempt document
Sections 38, 47C
Refused
38
Exempt document
Section 38
Refused
39
Commissioner
of Taxation
v
Granted
Douglas [2020] FCAFC 220
40
Exempt document
Sections 38, 47C
Refused
41
Exempt document
Section 38
Refused
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
7

42
Exempt document
Section 38
Refused
43
Exempt document
Section 38
Refused
44
Exempt document
Sections 38, 47C
Refused
45
Exempt document
Sections 38, 47C
Refused
46
Exempt document
Sections 38, 47C
Refused
47
Exempt document
Sections 38, 47C
Refused
48
Exempt document
Sections 38, 47C
Refused
49
Exempt document
Sections 38, 47C
Refused
50
Exempt document
Sections 38, 47C
Refused
51
Exempt document
Sections 38, 47C
Refused
52
Exempt document
Section 38
Refused
53
Exempt document
Section 38
Refused
54
Exempt document
Sections 38, 47C
Refused
55
Exempt document
Sections 38, 47C,
Refused
56
Exempt document
Section 38
Refused
57
Exempt document
Sections 38, 47C
Refused
58
Exempt document
Sections 38, 47C
Refused
59
Exempt document
Sections 38, 47C
Refused
60
Commissioner
of
Taxation
v
Granted
Douglas [2020] FCAFC 220
61
Exempt document
Section 38
Refused
62
Exempt document
Section 38
Refused
63
Exempt document
Section 38
Refused
64
Exempt document
Section 38
Refused
65
Exempt document
Section 38
Refused
66
Exempt document
Section 38
Refused
67
Exempt document
Sections 38, 47C
Refused
68
Exempt document
Section 38
Refused
69
Exempt document
Sections 38, 47C
Refused
70
Exempt document
Section 38
Refused
71
Exempt document
Sections 38, 47C
Refused
72
Exempt document
Sections 38, 47C
Refused
73
Exempt document
Sections 38, 47C
Refused
74
Exempt document
Sections 38, 47C
Refused
75
Exempt document
Sections 38, 47C
Refused
76
Exempt document
Sections 38, 47C
Refused
77
Exempt document
Sections 38, 47C
Refused
78
Exempt document
Sections 38, 47C
Refused
79
Exempt document
Sections 38, 47C
Refused
80
Exempt document
Sections 38, 47C
Refused
81
Exempt document
Sections 38, 47C
Refused
82
Exempt document
Sections 38, 47C
Refused
83
Exempt document
Sections 38, 47C
Refused
84
Exempt document
Section 38
Refused
85
Exempt document
Sections 38, 47C
Refused
86
Exempt document
Section 38
Refused
87
Exempt document
Section 38
Refused
88
Exempt document
Sections 38, 47C
Refused
89
Exempt document
Sections 38, 47C
Refused
90
Exempt document
Sections 38, 47C
Refused
91
Exempt document
Sections 38, 47C
Refused
92
Exempt document
Sections 38, 47C
Refused
93
Exempt document
Sections 38, 47C
Refused
94
Exempt document
Section 38
Refused
95
Exempt document
Section 38
Refused
96
Exempt document
Section 38
Refused
97
Exempt document
Sections 38, 47C
Refused
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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98
Exempt document
Sections 38, 47C
Refused
99
Exempt document
Sections 38, 47C
Refused
100
Exempt document
Sections 38, 47C
Refused
101
Exempt document
Sections 38, 47C
Refused
102
Exempt document
Section 38
Refused
103
Exempt document
Section 38
Refused
104
Exempt document
Sections 38, 47C
Refused
105
Exempt document
Section 38
Refused
106
Exempt document
Section 38
Refused
107
Exempt document
Section 38
Refused
108
Exempt document
Section 38
Refused
109
Exempt document
Section 38
Refused
110
Exempt document
Sections 38, 47C
Refused
111
Exempt document
Section 38
Refused
112
Exempt document
Section 38
Refused
113
Exempt document
Section 38
Refused
114
Exempt document
Section 38
Refused
115
Exempt document
Section 38
Refused
116
Exempt document
Section 38
Refused
117
Exempt document
Section 38
Refused
118
Exempt document
Section 38
Refused
119
Exempt document
Section 38
Refused
120
Exempt document
Section 38
Refused
121
Exempt document
Section 38
Refused
122
Exempt document
Section 38
Refused
123
Exempt document
Section 38
Refused
124
Exempt document
Section 38
Refused
125
Exempt document
Section 38
Refused
126
Exempt document
Section 38
Refused
127
Exempt document
Section 38
Refused
128
Exempt document
Section 38
Refused
129
Exempt document
Section 38
Refused
130
Exempt document
Section 38
Refused
131
Exempt document
Section 38
Refused
132
Exempt document
Section 38
Refused
133
Exempt document
Section 38
Refused
134
Exempt document
Section 38
Refused
135
Exempt document
Section 38
Refused
136
Exempt document
Section 38
Refused
137
Exempt document
Section 38
Refused
138
Exempt document
Section 38
Refused
139
Exempt document
Sections 38, 47C
Refused
140
Exempt document
Section 38
Refused
141
Exempt document
Sections 38, 47C
Refused
142
Exempt document
Sections 38, 47C
Refused
143
Exempt document
Section 38
Refused
144
Exempt document
Section 38
Refused
145
Exempt document
Section 38
Refused
146
Exempt document
Section 38
Refused
147
Exempt document
Section 38
Refused
148
Exempt document
Section 38
Refused
149
Exempt document
Section 38
Refused
150
Exempt document
Section 38
Refused
151
Exempt document
Section 38
Refused
152
Exempt document
Section 38
Refused
153
Exempt document
Section 38
Refused
154
Exempt document
Section 38
Refused
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
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155
Exempt document
Section 38
Refused
156
Exempt document
Section 38
Refused
157
Exempt document
Section 38
Refused
158
Exempt document
Section 38
Refused
159
Exempt document
Section 38
Refused
160
Exempt document
Section 38
Refused
161
Exempt document
Section 38
Refused
162
Exempt document
Section 38
Refused
163
Exempt document
Section 38
Refused
164
Exempt document
Section 38
Refused
165
Exempt document
Section 38
Refused
166
Exempt document
Section 38
Refused
167
Exempt document
Section 38
Refused
168
Exempt document
Section 38
Refused
169
Exempt document
Section 38
Refused
170
Exempt document
Section 38
Refused
171
Exempt document
Section 38
Refused
172
Exempt document
Section 38
Refused
173
Exempt document
Section 38
Refused
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
10
FREEDOM OF INFORMATION ACT 1982 (CTH)
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
11
(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
12
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY ACT 1998 (CTH)
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;
(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.
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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;
(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), (5AB), (5AC), (5B), (5C), (5D), (6), (6A), (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).
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(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).
(5AB) It is not an offence if the disclosure of protected information or the production of a
protected document by a person is for the purpose of APRA complying with any
of the following:
(a) section 55B (ASIC requests);
(b) section 55D (Notifying ASIC of reasonable belief of material breach of ASIC
provisions).
Note: A defendant bears an evidential burden in relation to the matters in subsection (5AB)
(see subsection 13.3(3) of the
Criminal Code).
(5AC) It is not an offence if:
(a) the disclosure of protected information or the production of a protected
document is by ASIC, for the purposes of the performance of ASIC’s
functions, or the exercise of ASIC’s powers; and
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(b) the protected information was disclosed previously to ASIC, or the
protected document was produced previously to ASIC, for the purpose of
APRA complying with any of the following:
(i) section 55B (ASIC requests);
(ii) section 55D (Notifying ASIC of reasonable belief of material breach of
ASIC provisions).
Note: A defendant bears an evidential burden in relation to the matters in subsection (5AC)
(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
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(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:
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(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.
(9B) Subsection (9) does not apply if the information is disclosed, or the document is
produced, in accordance with subsection (5AB) or (5AC).
(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.
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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), (5AB), (5AC), (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.
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