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Download PDF Read More This Issues Paper reflects the law as at 30 November 2006 © Commonwealth of Australia 2006 This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Requests for further authorisation should be directed by letter to the Commonwealth Copyright Administration, Copyright Law Branch, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600 or electronically via www.ag.gov.au/cca. ISBN 0-9758213-7-7 Commission Reference: IP 32 The Australian Law Reform Commission was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). The office of the ALRC is at Level 25, 135 King Street, Sydney, NSW, 2000, Australia. All ALRC publications can be made available in a range of accessible formats for people with disabilities. If you require assistance, please contact the ALRC. Telephone: within Australia (02) 8238 6333 International +61 2 8238 6333 TTY: (02) 8238 6379 Facsimile: within Australia (02) 8238 6363 International +61 2 8238 6363 E-mail: [email protected] ALRC homepage: www.alrc.gov.au Printed by Canprint Communications Pty Ltd Making a submission Any public contribution to an inquiry is called a submission and these are actively sought by the ALRC from a broad cross-section of the community, as well as those with a special interest in the inquiry. Submissions are usually written, but there is no set format and they need not be formal documents. Where possible, submissions in electronic format are preferred. It would be helpful if comments addressed specific questions or numbered paragraphs in this paper. Open inquiry policy In the interests of informed public debate, the ALRC is committed to open access to information. As submissions provide important evidence to each inquiry, it is common for the ALRC to draw upon the contents of submissions and quote from them or refer to them in publications. As part of ALRC policy, non-confidential submisions are made available during the Inquiry to other state and territory law reform bodies working on a privacy inquiry. Non-confidential submissions are also made available to any other person or organisation upon request after completion of an inquiry, and also may be published on the ALRC website. For the purposes of this policy, an inquiry is considered to have been completed when the final report has been tabled in Parliament. However, the ALRC also accepts submissions made in confidence. Confidential submissions may include personal experiences where there is a wish to retain privacy, or other sensitive information (such as commercial-in-confidence material). Any request for access to a confidential submission is determined in accordance with the federal Freedom of Information Act 1982, which has provisions designed to protect sensitive information given in confidence. In the absence of a clear indication that a submission is intended to be confidential, the ALRC will treat the submission as non-confidential. Submissions should be sent to: The Executive Director Australian Law Reform Commission GPO Box 3708 SYDNEY NSW 2001 E-mail: [email protected] Submissions may also be made using the on-line form on the ALRC’s homepage: <www.alrc.gov.au>. The closing date for submissions in response to IP 32 is 9 March 2007. Contents Contents Terms of Reference 3 List of Participants 5 List of Questions 9 1. Introduction to the Inquiry 15 Background 15 The scope of the Inquiry 16 Organisation of this paper 17 Process of reform 18 2. Credit Reporting and its Regulation 23 Introduction 23 What is credit reporting? 23 Credit reporting agencies 25 Background to national regulation 26 Legislative history 29 3. Credit Reporting Provisions of the Privacy Act 1988 (Cth) 35 Introduction 35 Application of the credit reporting provisions 37 Content of credit information files 40 Accuracy and security of personal information 43 Disclosure of personal information 44 Use of personal information 48 Rights of access, correction and notification 50 Interaction between Part IIIA and the NPPs 51 4. The Regulatory Framework 53 Introduction 53 Responsibilities and powers of the OPC 54 Complaint-handling 60 Credit reporting complaints experience 62 Remedies and penalties 65 5. Reform of the Credit Reporting Provisions 70 Introduction 70 Permitted content of credit information files 70 Informing individuals about credit reporting 75 Deletion of information in credit information files 76 2 Review of Privacy—Credit Reporting Provisions Accuracy and security 78 Rights of access and alteration 83 Limits on disclosure by credit reporting agencies 86 Participation in the credit reporting system 91 Consent to disclosure of information 93 Limits on use of credit reports by credit providers 97 Notification of adverse credit reports 98 Limits on disclosure by credit providers 99 Other limits on use or disclosure 100 Debt collection 101 Credit reporting, identity verification and identity theft 102 Debts of children and young people 103 Commercial credit 105 Publicly available information 106 Application to foreign credit providers 108 6. Comprehensive Credit Reporting 111 Introduction 111 Definitional issues 112 Australia’s approach to comprehensive credit reporting 114 Deficiencies in the current system of credit reporting 117 Will more comprehensive credit reporting address present deficiencies? 119 Regulation in other jurisdictions 125 Regulatory framework for more comprehensive credit reporting 130 New information to be included in credit reporting 130 Consequential changes if more comprehensive credit reporting introduced 131 7. The Approach to Reform 135 Introduction 135 Structural approaches to reform 135 Consumer and industry perspectives on reform 143 Changes in the credit sector and credit reporting system 145 Other reform considerations 146 Appendix 1. List of Abbreviations 149 Terms of Reference REVIEW OF THE PRIVACY ACT 1988 I, Philip Ruddock, Attorney-General of Australia, having regard to: • the rapid advances in information, communication, storage, surveillance and other relevant technologies • possible changing community perceptions of privacy and the extent to which it should be protected by legislation • the expansion of State and Territory legislative activity in relevant areas, and • emerging areas that may require privacy protection, refer to the Australian Law Reform Commission for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, matters relating to the extent to which the Privacy Act 1988 and related laws continue to provide an effective framework for the protection of privacy in Australia. 1. In performing its functions in relation to this reference, the Commission will consider: (a) relevant existing and proposed Commonwealth, State and Territory laws and practices (b) other recent reviews of the Privacy Act 1988 (c) current and emerging international law and obligations in this area (d) privacy regimes, developments and trends in other jurisdictions (e) any relevant constitutional issue (f) the need of individuals for privacy protection in an evolving technological environment (g) the desirability of minimising the regulatory burden on business in this area, and 4 Review of Privacy—Credit Reporting Provisions (h) any other related matter. 2. The Commission will identify and consult with relevant stakeholders, including the Office of the Federal Privacy Commissioner, relevant State and Territory bodies and the Australian business community, and ensure widespread public consultation. 3. The Commission is to report no later than 31 March 2008. Dated 30th January 2006 [signed] Philip Ruddock Attorney-General List of Participants Australian Law Reform Commission Division The Division of the ALRC constituted under the Australian Law Reform Commission Act 1996 (Cth) for the purposes of this Inquiry comprises the following: Professor David Weisbrot (President) Professor Les McCrimmon (Commissioner) Justice Robert French (part-time Commissioner) Justice Susan Kenny (part-time Commissioner) Justice Susan Kiefel (part-time Commissioner) Senior Legal Officers Carolyn Adams Bruce Alston Kate Connors Isabella Cosenza Jonathan Dobinson Legal Officers Althea Gibson Lauren Jamieson Huette Lam Edward Santow Peter Turner (until August 2006) Research Manager Lani Blackman Librarian Carolyn Kearney Project Assistants Alayne Harland Tina O’Brien 6 Review of Privacy—Credit Reporting Provisions Legal Interns Justin Carter Elizabeth Crook Maggie Fung Dawnie Lam Fiona Roughley Teneille Steptoe Michelle Tse SooJin Yoon Advisory Committee Members Dr Bridget Bainbridge, National E-Health Transition Authority Ms Robin Banks, Public Interest Advocacy Centre Mr Paul Chadwick, Consultant (formerly Victorian Privacy Commissioner) Ms Karen Curtis, Privacy Commissioner (Cth) Mr Peter Ford, Privacy, Security and Telecommunications Consultant Mr Ian Gilbert, Australian Bankers’ Association Mr Duncan Giles, Freehills Solicitors Professor Margaret Jackson, School of Accounting & Law, RMIT University Ms Helen Lewin, Telstra Corporation Associate Professor Roger Magnusson, Faculty of Law, University of Sydney Dr Moira Paterson, Faculty of Law, Monash University Ms Joan Sheedy, Australian Attorney-General’s Department Mr Peter
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