Waters, Nigel --- "Legislation and guidelines" [1996] PrivLawPRpr 42; (1996) 3(4) Privacy Law & Policy Reporter 72

---

Legislation and guidelines

CREDIT REPORTING CHANGES

Australian Privacy Commissioner, Credit Reporting Determination 1996 No 1

The Privacy Commissioner has issued Credit Reporting Determination 1996 No 1, concerning classes of credit providers. It covers those categories of business which do not come under the definition of `credit provider' in the Privacy Act but who nonetheless provide credit and require access to credit reports issued by a credit reporting agency. This instrument, issued under s 11B(1)(b)(v)(B) of the Privacy Act, continues the effect of the earlier Determination No 1 of 1993, and takes effect from 26 August 1996 for a period of five years (until 25 August 2001). It remains subject to disallowance by Parliament -- the period for disallowance will expire in October.

Expiring Determinations

Determinations 1992 Nos 1 and 2 are due to expire on 24 September 1996. These were issued by the Commissioner under s 18K(3)(b) of the Privacy Act and provided for a transitional period during which the two credit reporting agencies -- the Credit Reference Association of Australia (CRAA) and the Tasmanian Collection Service (TCS) -- would remove from their files information which they are no longer permitted to collect and hold. The TCS will have deleted all such information before 24 September and Determination 1992 No 2 can therefore lapse. The CRAA has indicated that it needs a one-year extension to complete its program of deletion. The Commissioner is currently consulting with the Credit Reporting Consultative Group with a view to issuing an extension determination for the CRAA.

Legislative changes pending

An amendment to Pt IIIA of the Privacy Act to give the Privacy Commissioner the power to declare an `agency' to be a credit provider for the purposes of the Act was included in Law and Justice Legislation Amendment Bill (No 2) 1995 which was introduced into Parliament on 29 March 1995 but lapsed due to the 1996 election. It is expected to be re-introduced in the next session. This amendment is designed specifically to allow for the ACT housing trust which makes commercial loans to have access to credit reports from credit reference agencies and other credit providers, but it would also allow the Commissioner to make similar determinations in favour of any Commonwealth or ACT agency which met the strict conditions applying to the new provision.

The lapsed Bill also contained some other minor amendments to Pt IIIA which would:

• insert a definition of `guarantee' which makes it clear that an indemnity is included within this definition;
• allow an overdue payment under a guarantee to be listed on the guarantor's credit information file; and
• empower the Privacy Commissioner to copy and retain certain documents in the course of an investigation.

It is expected that these too will be re-introduced in the next session.

Another proposed amendment, to deal with the issue of subject access `under duress', is still under consideration and consultation with the Credit Reporting Consultative Group.

Nigel Waters.

ASC `SPENT CONVICTIONS' EXEMPTION

Crimes Act 1914 (Cth) Schedule 4; Statutory Rule 1996 No 7, gazetted 3 January 1996

Persons employed or contracted by the Australian Securities Commission (ASC) no longer have the protection of the Commonwealth spent convictions scheme, following the making of regulations under Sched 4 of the Crimes Act 1914 (Cth). The effect is that anyone applying to work for the ASC, as an employee, consultant or even contractor, can be asked questions about even a minor criminal record in the past which would normally be considered `spent' under the scheme. Statutory Rule 1996 No 7, gazetted on 31 January 1996, also gives the ASC an exclusion from the scheme when considering whether to prosecute or making submissions as to sentence. Previously the ASC, like other commonwealth agencies, was expected not to ask about spent convictions, which individuals are entitled not to disclose.

In making this amendment, the then Attorney-General rejected advice from the Privacy Commissioner. This advice followed the criteria set out in the May 1990 Advice published by the Commissioner, which seeks to limit exclusions from the scheme to circumstances similar to those included in the original statute. In the Commissioner's view, the case made by the ASC to be treated as a `law enforcement agency' for the entirety of its operations was not convincing, but the Attorney-General took a contrary view, placing the ASC in the same category as the Australian Federal Police and the national crime authority. In all previous applications for exclusion, the Attorney-General has followed the Commissioner's advice.

Nigel Waters.