FOI 23-22
25 January 2023
Dale Webster
By email: xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Ms Webster,
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 OF THE SAME
Applicant:
Dale Webster
Decision-maker:
Astrid (person number 101676), an authorised officer of the
Australian Prudential Regulation Authority (
APRA) for the
purposes of subsection 23(1) of the FOI Act.
FOI request:
‘I am seeking APRA internal documents (including emails),
and also any APRA queries to reporting entities, that
constitute consideration by APRA of branch classification
errors in the authorised deposit-taking institutions points of
presence data (also known as ADIPOP) published by the
Australian Prudential Regulation Authority (also known as
APRA) concerning:
- Bendigo and Adelaide Bank (also known as Bendigo
Bank and Rural Bank) and Rabobank; and
- cashless banks (also referred to as tellerless or digital
banks) where customers are directed to ATMs for cash rather
than being given face-to-face service,
during the period from 11 May 2021 to 19 October 2022
(being the dates from when the errors were first made public
to the release of the 2022 ADIPOP data).’
(
FOI request)
My decision:
Grant access to one relevant document and refuse access to
the remaining relevant documents based on the reasons
outlined in this Notice of Decision.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
1
MATERIAL FACTS
1.
On 26 December 2022, you made the FOI request by email under the FOI Act.
2.
On 3 January 2023, APRA acknowledged receipt of the request by email.
3.
On 11 January 2023, APRA issued a Request Consultation Process (Practical Refusal)
Notice under section 24AB of the FOI Act.
4.
On 12 January 2023, you revised the scope of the request.
5.
On 24 January 2023, APRA extended the decision date under section 15AB of the FOI
Act until 24 February 2023.
EVIDENCE AND MATERIAL RELIED ON
6.
In making my decision, I have relied on the following evidence and material:
a.
the Applicant’s request received by APRA on 26 December 2022;
b.
the acknowledgment email from the FOI Officer to the Applicant dated 3 January
2023;
c.
the Request Consultation Process (Practical Refusal) Notice issued by APRA to
the Applicant under section 24AB of the FOI Act on 11 January 2023;
d.
the email from the Applicant to the FOI Officer revising the scope of the request
dated 12 January 2023;
e.
internal APRA email correspondence from 3 January 2023 to 24 January 2023;
f.
relevant sections of the
Australian Prudential Regulation Authority Act 1998 (Cth)
(
APRA Act)
;
g.
relevant sections of the FOI Act; and
h.
guidelines issued by the Office of the Australian Information Commissioner to date
(
FOI Guidelines).
7.
APRA has conducted all reasonable searches of its records and identified 48 documents
relevant to your FOI request (
relevant documents).
REASONS
8.
I have decided to grant access to relevant document 3 (as identified in Table 1 in the
Document Schedule) on the basis that it is publicly available and to refuse access to the
remainder of the relevant documents. My reasons for the refusal are as follows:
a. in relation to relevant document 1 (as identified in Table 1 in the Document
Schedule): refuse access to the relevant document under section 47C and
subsection 47E(d) of the FOI Act;
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
2
b. in relation to relevant document 19 (as identified in Table 1 in the Document
Schedule): refuse access to the relevant document under section 42 and
subsection 47E(d) of the FOI Act;
c. in relation to relevant documents 4, 18, 20 – 21 and 23 – 24 (as identified in
Table 1 in the Document Schedule): refuse access to the relevant documents
under section 42 of the FOI Act; and
d. in relation to relevant documents 2, 4 – 18 and 20 – 48 (as identified in Table
1 in the Document Schedule): refuse access to the relevant documents under
section 38 of the FOI Act and section 56 of the APRA Act.
Deliberative processes
9.
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
deliberation that has taken place, in the course of, or for the purposes of, the deliberative
processes involved in the functions of an agency.
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, including the pattern of facts or opinions considered, and interim decisions
or deliberations’.
11. Relevant document 1 (as identified in Table 1 in the Document Schedule) contains
information that falls within the definition of deliberative matter. The relevant document
records opinions, advice and recommendations for the purposes of, and matter relating
to consultation and deliberation that has taken place in the course of, deliberative
processes of APRA. Paragraph 6.55 of the FOI Guidelines provides that I am not
required to consider whether harm would result from disclosure. The information in the
document is considered deliberative matter, and is therefore conditionally exempt under
section 47C of the FOI Act.
Documents disclosing certain operations of agencies
12. Subsection 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.
13. Paragraph 6.95 of the FOI Guidelines provides that for the exemption to apply,
disclosure of the documents would or could reasonably be expected to ‘prejudice or
have a substantial adverse effect on certain listed agency operations’.
14. Relevant documents 1 and 19 (as identified in Table 1 in the Document Schedule)
contain information regarding the operations of APRA. If the relevant documents are
released, APRA’s ability to perform its operations may become limited and could
reasonably be expected to prejudice, or have a substantial adverse effect on the proper
and efficient conduct of APRA.
15. In light of the above, I have determined the relevant documents to be conditionally
exempt under subsection 47E(d) of the FOI Act.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
3
Application of the public interest test
16. I have reviewed the FOI Act and FOI Guidelines and consider that the following factors
favouring the disclosure of relevant documents 1 and 19 (as identified in Table 1 in the
Document Schedule) would apply, as disclosure would or could reasonably be expected
to:
a.
promote the objects of the FOI Act; and
b.
inform debate on a matter of public importance.
17. I also consider that the following factors against release would apply, as disclosure
would or could reasonably be expected to:
a.
inhibit the ability of APRA to provide frank and complete information or advice on
similar matters in the future (in the case of relevant document 1, as identified in
Table 1 in the Document Schedule); and
b.
inhibit APRA’s ability to perform its operations and have a substantial adverse
effect on the proper and efficient conduct of APRA (in the case of relevant
documents 1 and 19, as identified in Table 1 in the Document Schedule).
18. I have not taken into account any of the irrelevant factors in subsection 11B(4) of the
FOI Act in determining whether access to the relevant documents would, on balance,
be contrary to the public interest.
19. I have decided that, on balance, the public interest factors against release outweigh the
public interest factors in favour of release of the relevant documents.
20. Extracts of sections 11B, 47C and 47E of the FOI Act are attached to these reasons.
Documents subject to legal professional privilege
21. Section 42 of the FOI Act provides that an agency may refuse a request for access to a
document if the document is of such a nature that it would be privileged from production
in legal proceedings on the ground of legal professional privilege.
22. Paragraphs 5.127 and 5.129 of the FOI Guidelines require an agency to consider
whether:
a. there is a legal-advisor client relationship;
b. the communication was for the purpose of giving or receiving legal advice, or
use in connection with actual or anticipated litigation;
c. the advice given is independent; and
d. the advice given is confidential.
23. I have concluded that the communications in relevant documents 4, 18 – 21 and 23 –
24 (as identified in Table 1 in the Document Schedule) are privileged communications
as:
a. there was a legal-adviser client relationship;
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
4
b. the communications were for the purpose of giving or receiving legal advice;
c. the advice was given from an independent lawyer; and
d. the advice given was confidential.
24. Based on the information before me, the relevant documents would be privileged from
production in legal proceedings on the ground of legal professional privilege. I have
therefore decided to refuse access to the relevant documents under section 42 of the
FOI Act.
25. An extract of section 42 of the FOI Act is attached to these reasons.
Secrecy provisions
26. I have determined that relevant documents 2, 4 – 18 and 20 – 48 (as identified in Table
1 in the Document Schedule) are protected documents, and/or contain protected
information, as defined in subsection 56(1) of the APRA Act. The relevant documents
are consequently exempt under section 38 of the FOI Act.
27. 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
Financial Sector (Collection of Data) Act 2001 is a prudential
regulation framework law. The relevant documents were provided or produced and
disclosed or obtained under, or for the purposes of, this prudential regulation
framework law. Therefore, the document is a protected document unless it is
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 entity. For
the reasons outlined in paragraph (iv) above, information contained in the
document is protected, unless it is publicly available; and
vi.
the information and the documents are not publicly available.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
5
28. Extracts of section 38 of the FOI Act and section 56 of the APRA Act are attached to
these reasons.
RIGHTS OF REVIEW
Application for Internal Review of decision
29. 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.
30. 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.
31. 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).
32. 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.
33. 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
Email: xxx@xxxx.xxx.xx
34. If you make an application for internal review and we do not make a decision within 30
days of receiving the application, APRA is deemed to have affirmed the original decision.
However, under section 54D of the FOI Act, APRA may apply, in writing, to the
Information Commissioner for further time to consider the internal review.
Application for review by Information Commissioner
35. 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 (amongst other things).
36. Any application must be in writing and must give details of an address where notices
may be sent and include a copy of the relevant decision.
37. An application for review by the Information Commissioner may be lodged with one of
the following:
Online
Complete and lodge the online FOI review form at:
Information Commissioner review - Home (oaic.gov.au)
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
6
Post, email or
Download and complete the FOI review form and send it by:
facsimile
Post: Director of FOI Dispute Resolution
GPO Box 5218, Sydney NSW 2001
Email: xxxxx@xxxx.xxx.xx
Facsimile: (02) 9284 9666
38. More information about making an application for review by the Information
Commissioner is available at:
Information Commissioner review - Home (oaic.gov.au).
Application for review by Administrative Appeals Tribunal
39. You may be entitled to seek review of the Information Commissioner’s decision by the
Administrative Appeals Tribunal (
AAT).
40. The AAT is an independent review body with the power to make a fresh decision. An
application fee must usually be paid for an application to the AAT for a review of an FOI
decision. Further information is available from the AAT on 1800 228 333.
41. More information about your review rights under the FOI Act is available at:
Part 10 —
Review by the Information Commissioner - Home (oaic.gov.au).
Complaints to the Information Commissioner
42. 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.
43. More information about your rights to make a complaint, including the manner in which
you may do so, is available at:
Make an FOI complaint - Home (oaic.gov.au).
Astrid (person number 101676)
FOI Officer
Australian Prudential Regulation Authority
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
7
Document Schedule
Document Description
Exemption(s)
Access
no.
1
Exempt document
Sections 47C and Refused
47E(d)
2
Exempt document
Section 38
Refused
3
APRA holding statement on Not applicable
Granted
points of presence revisions
4
Exempt document
Sections 38 and 42 Refused
5
Exempt document
Section 38
Refused
6
Exempt document
Section 38
Refused
7
Exempt document
Section 38
Refused
8
Exempt document
Section 38
Refused
9
Exempt document
Section 38
Refused
10
Exempt document
Section 38
Refused
11
Exempt document
Section 38
Refused
12
Exempt document
Section 38
Refused
13
Exempt document
Section 38
Refused
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
Sections 38 and 42 Refused
19
Exempt document
Sections 42 and Refused
47E(d)
20
Exempt document
Sections 38 and 42 Refused
21
Exempt document
Sections 38 and 42 Refused
22
Exempt document
Section 38
Refused
23
Exempt document
Sections 38 and 42 Refused
24
Exempt document
Sections 38 and 42 Refused
25
Exempt document
Section 38
Refused
26
Exempt document
Section 38
Refused
27
Exempt document
Section 38
Refused
28
Exempt document
Section 38
Refused
29
Exempt document
Section 38
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
Section 38
Refused
35
Exempt document
Section 38
Refused
36
Exempt document
Section 38
Refused
37
Exempt document
Section 38
Refused
38
Exempt document
Section 38
Refused
39
Exempt document
Section 38
Refused
40
Exempt document
Section 38
Refused
41
Exempt document
Section 38
Refused
42
Exempt document
Section 38
Refused
43
Exempt document
Section 38
Refused
44
Exempt document
Section 38
Refused
45
Exempt document
Section 38
Refused
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
8
46
Exempt document
Section 38
Refused
47
Exempt document
Section 38
Refused
48
Exempt document
Section 38
Refused
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
9
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.
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.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
10
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 to the public interest (see section 11A).
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 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).
42 Documents subject to legal professional privilege
(1) A document is an exempt document if it is of such a nature that it would be
privileged from production in legal proceedings on the ground of legal
professional privilege.
(2) A document is not an exempt document because of subsection (1) if the person
entitled to claim legal professional privilege in relation to the production of the
document in legal proceedings waives that claim.
(3) A document is not an exempt document under subsection (1) by reason only
that:
(a) the document contains information that would (apart from this subsection)
cause the document to be exempt under subsection (1); and
(b) the information is operational information of an agency.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
11
Note: For
operational information, see section 8A.
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 or a Norfolk Island law; 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 enactment or law or any
other enactment or Norfolk Island law.
(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 or law concerned or
any other enactment or Norfolk Island law.
(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.
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 Regulator Assessment Authority official means an entrusted
person within the meaning of the
Financial Regulator Assessment Authority Act
2021.
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) or
(4D) of the
Financial Sector (Collection of Data) Act 2001; or
(cb) a person in relation to whom information is, or was, required to be given
under Part IIAA of the
Banking Act 1959;
other than:
(d) a document containing information that has already been lawfully made
available to the public from other sources; or
(e) a document given or produced under, or for the purposes of, a provision of
the
Superannuation Industry (Supervision) Act 1993:
(i) administered by the Commissioner of Taxation; or
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
13
(ii) being applied for the purposes of the administration of a provision
administered by the Commissioner of Taxation.
It also includes a document that is given to APRA under Part 7.5A of
the
Corporations Act 2001, other than a document containing information that
has already been lawfully made available to the public from other sources.
protected information means information disclosed or obtained (whether before
or after the commencement of this section) under, or for the purposes of, a
prudential regulation framework law and relating to the affairs of:
(a) a financial sector entity; or
(b) a body corporate (including a body corporate that has ceased to exist) that
has at any time been, or is, related (within the meaning of the
Corporations
Act 2001) to a body regulated by APRA or to a registered entity; or
(c) a person who has been, is, or proposes to be, a customer of a body
regulated by APRA or of a registered entity; or
(ca) a person in relation to whom information is, or was, required to be given
under a reporting standard made in accordance with subsection 13(4A) or
(4D) of the
Financial Sector (Collection of Data) Act 2001; or
(cb) a person in relation to whom information is, or was, required to be given
under Part IIAA of the
Banking Act 1959;
other than:
(d) information that has already been lawfully made available to the public from
other sources; or
(e) information given or produced under, or for the purposes of, a provision of
the
Superannuation Industry (Supervision) Act 1993:
(i) administered by the Commissioner of Taxation; or
(ii) being applied for the purposes of the administration of a provision
administered by the Commissioner of Taxation.
It also includes information that is given to APRA under Part 7.5A of
the
Corporations Act 2001, other than information that has already been lawfully
made available to the public from other sources.
registered entity means a corporation that is, or has at any time been, a
registered entity within the meaning of the
Financial Sector (Collection of Data)
Act 2001.
(2) A person who is or has been an officer commits an offence if:
(a) the person directly or indirectly:
(i) discloses information acquired in the course of his or her duties as an
officer to any person or to a court; or
(ii) produces a document to any person or to a court; and
(b) the information is protected information, or the document is a protected
document; and
(c) the disclosure or production is not in accordance with subsection (3), (4),
(5), (5AA), (5A), (5AB), (5AC), (5B), (5C), (5D), (6), (6AA), (6AB), (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.
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
14
(3) It is not an offence if the disclosure of protected information or the production of
a protected document by a person is for the purposes of a prudential regulation
framework law.
Note:
A defendant bears an evidential burden in relation to the matters in
subsection (3) (see subsection 13.3(3) of the
Criminal Code).
(4) It is not an offence if the disclosure of protected information or the production of
a protected document by a person:
(a) is by an employee of the person to whose affairs the information or
document relates; or
(b) occurs after the person to whose affairs the information or document
relates has agreed in writing to the disclosure or production.
Note:
A defendant bears an evidential burden in relation to the matters in
subsection (4) (see subsection 13.3(3) of the
Criminal Code).
(5) It is not an offence if the disclosure of protected information or the production of
a protected document by a person:
(a) occurs when the person is satisfied that the disclosure of the information, or
the production of the document, will assist a financial sector supervisory
agency, or any other agency (including foreign agencies) specified in the
regulations, to perform its functions or exercise its powers and the
disclosure or production is to that agency; or
(aa) occurs when the person is satisfied that the disclosure of the information,
or the production of the document, will assist the operator of the AFCA
scheme (within the meaning of Chapter 7 of the
Corporations Act 2001) to
perform its functions or exercise its powers, and the disclosure or
production is to that operator; or
(b) is to another person and is approved by APRA by instrument in writing.
Note:
A defendant bears an evidential burden in relation to the matters in
subsection (5) (see subsection 13.3(3) of the
Criminal Code).
(5AA) It is not an offence if the disclosure of protected information or the production of a
protected document is made:
(a) by an officer of an agency to which the information or document has been
disclosed or produced under paragraph (5)(a); and
(b) for the same purpose as the information or document was so disclosed or
produced to that agency.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (5AA) (see subsection 13.3(3) of the
Criminal Code).
(5A) It is not an offence if the production by a person of a document that was given to
APRA under section 9 or 13 of the
Financial Sector (Collection of Data) Act
2001 is to the Australian Statistician for the purposes of the
Census and
Statistics Act 1905.
Note:
A defendant bears an evidential burden in relation to matters in
subsection (5A) (see subsection 13.3(3) of the
Criminal Code).
(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);
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
15
(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
(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;
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
16
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).
(6AA) It is not an offence if the disclosure of protected information or the production of a
protected document is to a Financial Regulator Assessment Authority official for
the purposes of the performance of the Financial Regulator Assessment
Authority’s functions or the exercise of the Financial Regulator Assessment
Authority’s powers.
Note:
A defendant bears an evidential burden in relation to the matters in
subsection (6AA) (see subsection 13.3(3) of the
Criminal Code).
(6AB) It is not an offence if:
(a) the disclosure of protected information or the production of a protected
document is by a person who is or has been a Financial Regulator
Assessment Authority official; and
(b) the person acquired the information or accessed the document in the
course of the person’s duties in relation to the Financial Regulator
Assessment Authority.
Note 1: A defendant bears an evidential burden in relation to the matters in
subsection (6AB) (see subsection 13.3(3) of the
Criminal Code).
Note 2: Division 3 of Part 4 of the
Financial Regulator Assessment Authority Act
2021 deals with disclosure of information by Financial Regulator
Assessment Authority officials.
(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;
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
17
(c) any other information that is reasonably necessary to enable members of
the public to contact persons who perform functions in relation to bodies
referred to in paragraph (a).
Note: A defendant bears an evidential burden in relation to the matters in
subsection (7A) (see subsection 13.3(3) of the
Criminal Code).
(7B) It is not an offence if the information, or the information contained in the
document, as the case may be, is:
(a) a statement of APRA’s opinion as to whether or not a body regulated by
APRA is complying, or was complying at a particular time, with a particular
provision of a prudential regulation framework law; or
(b) a description of:
(i) court proceedings in relation to a breach or suspected breach by a
person of a provision of a prudential regulation framework law; or
(ii) activity engaged in, or proposed to be engaged in, by APRA in relation
to such a breach or suspected breach; or
(c) a description of action under a prudential regulation framework law that
APRA has taken or is proposing to take in relation to:
(i) a body regulated by APRA; or
(ii) an individual who holds or has held a position with or in relation to
such a body.
Note:
A defendant bears an evidential burden in relation to the matters in
subsection (7B) (see subsection 13.3(3) of the
Criminal Code).
(7C) If information referred to in subsection (7A) or paragraph (7B)(a) that relates to a
body that is, or has at any time been, regulated by APRA under
the
Superannuation Industry (Supervision) Act 1993 is disclosed to the Registrar
of the Australian Business Register established under section 24 of the
A New
Tax System (Australian Business Number) Act 1999, the Registrar may enter the
information in that Register.
Note:
A defendant bears an evidential burden in relation to the matters in
subsection (7C) (see subsection 13.3(3) of the
Criminal Code).
(7D) It is not an offence if:
(a) the disclosure of protected information or the production of a protected
document is to an ADI (within the meaning of the
Banking Act 1959); and
(b) the information, or the information contained in the document, as the case
may be, is information contained in the register kept under section 37H of
the
Banking Act 1959.
Note:
A defendant bears an evidential burden in relation to the matters in
subsection (7D) (see subsection 13.3(3) of the
Criminal Code).
(7E) It is not an offence if:
(a) the disclosure of protected information or the production of a protected
document is to an individual; and
(b) the information, or the information contained in the document, as the case
may be, is only personal information about the individual; and
(c) the information, or the information contained in the document, as the case
may be, is information contained in the register kept under section 37H of
the
Banking Act 1959.
Note:
A defendant bears an evidential burden in relation to the matters in
subsection (7E) (see subsection 13.3(3) of the
Criminal Code).
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
18
(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.
(8A) However, subsection (8) does not prevent a person who is, or has been, a
Financial Regulator Assessment Authority official from being required to
disclose, or produce a document containing, protected information (within the
meaning of the
Financial Regulator Assessment Authority Act 2021) when it is
necessary to do so for the purposes of that Act.
(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.
(9A) Subsection (9) does not apply if the information is disclosed, or the document is
produced, in accordance with subsection (6AA) or (6AB).
(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.
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),
(6AA), (7A), (7B), (7C), (7D), (7E) and (7F); or
AUSTRALIAN PRUDENTIAL REGULATION AUTHORITY
19
(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
20
