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Waters, Nigel --- "Managing the Privilege of Credit Reporting: An Analysis of ALRC Proposals for the Credit Reporting Provisions of the Privacy Act" [2008] UNSWLRS 27

Last Updated: 5 September 2008

Managing the Privilege of Credit Reporting: An Analysis of the ALRC Proposals for the Credit Reporting Provisions of the Privacy Act
Nigel Waters

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Citation

This paper is the third of six submissions that will appear in the UNSW Law Research Series as part of a series made to the Australian Law Reform Commission on the Review of Australian Privacy Law Discussion Paper 72 by researchers on the ‘Interpreting Privacy Principles’ project based at the Cyberspace Law and Policy Centre, University of New South Wales.

Abstract

This submission addresses these issues in greater detail and, more specifically, responds to Part G of the ALRC Discussion Paper 72 (DP72) which addresses the credit reporting provisions of the Privacy Act. The ALRC proposes that Part IIIA of the Privacy Act 1988 be repealed and that instead, binding privacy rules imposing obligations on credit providers and credit reporting agencies that differ from the default Unified Privacy Principles should be promulgated in Regulations under the Act, with some of the current binding obligations left to non-binding guidance.

The submission supports the proposal for Regulations provided they amount to an adequate replacement for Part IIIA. It follows that it would be necessary for the Regulations to be drafted and available for debate at the same time as any amendment repealing Part IIIA.

Currently Part IIIA of the Act effectively licences a particular form of ‘bundled pseudo-consent’ whereby individuals applying for credit are required to consent to secondary use and widespread disclosure, through centralised credit reference databases, of information about their financial affairs.

This submission argues that this should be acknowledged as a privileged state-sanctioned exception from normal expectations of privacy. From this starting point, it is only to be expected that there should be strict controls, limits an additional safeguards, and the onus should be on the community of lenders to justify any weakening of controls; derogations from obligations, or extension of the privilege in the form of more comprehensive credit reporting.