Glossary

Anonymity:

Wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering into transactions with an organisation.

Baycorp Advantage:
The largest credit reporting agency in Australia holding 13,000,000 individual records and 1,000,000 commercial records.

Baytrace:
Software tool developed by Baycorp Advantage to enable its related companies including Alliance Factoring a debt collection agency to secretly access the Baycorp bureaux credit files in order to extract individual credit records contained within the database.

See media releases for the Commissioners press release in respect to this matter. Link to Media Releases

Clearout:
The most serious type of credit default available to a credit provider and is reserved only for individuals who the credit provider has good reason to believe has acted fraudulently or the debtor intends to fraudulently avoid their obligations to the credit provider.

Code of Conduct
The Code of Conduct (“The Code”) supplements Part IIIA of the Act and regulates how credit providers and credit-reporting agencies must handle and deal with consumer credit information.
The Code came into effect on 24 September 1991 and became legally binding as of 25 February 1992. Section 18E(8)(c) of the Code deals with the credit-reporting provisions and disclosure aspect of the Act.

Collection:
1.1 An organisation must not collect personal information unless the information is necessary for one or more of its functions or activities.

1.2 An organisation must collect personal information only by lawful and fair means and not in an unreasonably intrusive way.

1.3 At or before the time (or, if that is not practicable, as soon as practicable after) an organisation collects personal information about an individual from the individual, the organisation must take reasonable steps to ensure that the individual is aware of:

(a) the identity of the organisation and how to contact it; and

(b) the fact that he or she is able to gain access to the information; and

(d) the organisations (or the types of organisations) to which the organisation usually discloses information of that kind; and

(e) any law that requires the particular information to be collected; and

(f) the main consequences (if any) for the individual if all or part of the information is not provided.

1.4 If it is reasonable and practicable to do so, an organisation must collect personal information about an individual only from that individual.

1.5 If an organisation collects personal information about an individual from someone else, it must take reasonable steps to ensure that the individual is or has been made aware of the matters listed in subclause 1.3 except to the extent that making the individual aware of the matters would pose a serious threat to the life or health of any individual.

Consent:
means the express consent or implied consent of the individual concerned. Express consent is required for credit reporting purposes.

Commissioner:
means the Privacy Commissioner.

Credit:
Means a loan sought or obtained by an individual from a credit provider in the course of the credit provider carrying on a business or undertaking as a credit provider, being a loan that is intended to be used wholly or primarily for domestic, family or household purposes.

Credit Information File:
In relation to an individual, means any record that contains information relating to the individual and is kept by a credit reporting agency in the course of carrying on a credit-reporting business (whether or not the record is a copy of the whole or part of, or is prepared using a record kept by another credit-reporting agency or any other person).

Credit report:

means any record or information, whether in a written, oral or other form, that;

(a) is being or has been prepared by a credit reporting agency; and

(b) has any bearing on individual’s:

(i) eligibility to be provided with credit; or

(ii) history in relation to credit; or

(iii) capacity to repay credit; and

(c) is used, has been used or has the capacity to be used for the purpose of serving as the factor of establishing an individuals eligibility for credit.

Credit reporting business:

Means a business or undertaking (other than a business or undertaking of a kind in respect of which regulations made for the purposes of sub-section (5C) are in force that involves the preparation or maintenance of records containing personal information relating to individuals (other than records in which the only personal information relating to individuals is publicly available information), for the purpose of or purposes that include as the dominant purpose the purpose of, providing to other persons, whether for profit or reward or otherwise information on an individual’s:

(a) eligibility to be provided with credit; or

(b) history in relation to credit; or

whether or not the information is provided or intended to be provided for the purposes of assessing applications for credit.

(5A) For the purpose of the definition of a credit reporting business in subsection (1), information concerning commercial transactions engaged in by or on behalf of an individual is not to be taken to be information relating to an individuals:

(a) eligibility to be provided with credit; or

(b) history in relation to credit; or

Credit provider:

has the meaning given by section 11B, and, for the purposes of sections 7 and 8 and Parts III, IV and V, is taken to include a mortgage insurer and a trade insurer.

Credit report:

means any record or information, whether in a written, oral or other form, that:

(a) is being or has been prepared by a credit reporting agency; and

(b) has any bearing on an individual’s:

(i) eligibility to be provided with credit; or

(ii) history in relation to credit; or

(iii) capacity to repay credit; and

(c) is used, has been used or has the capacity to be used for the purpose of serving as a factor in establishing an individual’s eligibility for credit.

Credit reporting agency:

has the meaning given by section 11A.

Credit reporting business:

means a business or undertaking (other than a business or undertaking of a kind in respect of which regulations made for the purposes of subsection (5C) are in force) that involves the preparation or maintenance of records containing personal information relating to individuals (other than records in which the only personal information relating to individuals is publicly available information), for the purpose of, or for purposes that include as the dominant purpose the purpose of, providing to other persons (whether for profit or reward or otherwise) information on an individual’s:

(a) eligibility to be provided with credit; or

(b) history in relation to credit; or

whether or not the information is provided or intended to be provided for the purposes of assessing applications for credit.

Credit reporting infringement:

means:

(a) a breach of the Code of Conduct; or

(b) a breach of a provision of Part IIIA.

Current credit provider;

in relation to an individual, means a credit provider who has given, to the individual, credit that has not yet been fully repaid or otherwise fully discharged.

Default:
the term given pursuant to the Privacy Act, to a debt that has become overdue by more than 60 days and is now in default. Subject to the issuing of a default notice the default may be published against an individuals credit file held by a credit reporting agency, as a “payment default:

Default Notice:

The Notice required by law to be given to an individual before publishing a default against their credit file. Where the default is regulated by the Uniformed Consumer Credit Code 1995 the debtor must be given more than 30 days to remedy the default.

Disclosure:
A credit provider must not disclose personal information to any third parties without obtaining the consent of the individual in respect of whose credit file is under the control or custodianship of the credit provider. The relevant section concerned is Section 18K set out below.

18K Limits on disclosure of personal information by credit reporting agencies
(1) A credit reporting agency in possession or control of an individual’s credit information file must not disclose personal information contained in the file to a person, body or agency (other than the individual) unless:

the credit reporting agency has, at least 30 days before the disclosure, received information of a kind referred to in subparagraph 18E(1)(b)(vi), and the information is contained in a credit report given to a credit provider who is a current credit provider in relation to the individual; or

the information is contained in a credit report given to a credit provider who requested the information

Disclosure Notice Section 18E(8)(c)
A credit provider is required pursuant to Section 18E(8)(c) of the Privacy Act to give to an individual a disclosure notice setting out the primary purposes for collecting the personal information and the uses the information may be used for.

The following has been extracted from the Credit Reporting Code of Conduct:

30. There are other occasions during the life of the individual’s loan contract with the credit provider where the credit provider may wish to disclose personal information to a credit-reporting agency. The credit provider will not be permitted to do this unless the individual has previously been notified of the disclosure. These notices should be given at the time the individual applies for credit with the credit provider. If such a notice was given, credit providers would then not be required to issue a specific notice prior to any subsequent disclosures.

31. The notice may be given orally. However, obtaining a written acknowledgment, where practicable, is advisable for reasons of certainty.

32. The notice should explain clearly what items of the individual’s personal information may be disclosed to a credit-reporting agency. As a guide only to credit providers, the following form of wording is considered to be an appropriate form of notification. It should be noted that not all of the information categories listed below need to be included in the notice.

The Privacy Commissioner recommends, in Part IIIA of the Code of Conduct, that a suitable disclosure notices should be in the following format.

Notice of disclosure of your credit information to a credit-reporting agency (Privacy Act 1988)

[Name of credit provider] may give information about you to a credit reporting agency for the following purposes:

· To obtain a consumer credit report about you, and/or

· Allow the credit-reporting agency to create or maintain a credit information file containing information about you.

This information is limited to:

· Identity particulars – your name, sex, address (and the previous two addresses), date of birth, name of employer, and drivers license number

· Your application for credit or commercial credit – the fact that you have applied for credit and the amount

· The fact that [name of credit provider ] is a current credit provider to you

· Loan repayments which are overdue by more than 60 days, and for which debt collection action has started

· Advice that your loan repayments are no longer overdue in respect of any default that has been listed

· Information that, in the opinion of [name of credit provider] you have committed a serious credit infringement (that is, acted fraudulently or shown an intention not to comply with you credit obligations)

· Dishonoured cheques – cheques drawn by you for $100 or more which have been dishonoured more than once

Period to which this understanding applies
This information may be given before, during or after the provision of credit to you.

(Signed acknowledgment by the individual)

Paragraph 5.2.4 of the Privacy Commissioners 2000-2001 annual report summarises a consumer complaint regarding a Telecommunication Company where the complainant was concerned with an alleged breach of s.18E(8)(c). Although the Commissioners office found in favour of the Telco, the finding is interesting as it states:

“As the complainant was the guarantor she was liable for the debt her son incurred. The credit provider had met its obligations under s.18E(8)(c) of the Act to advise at or before the time of the application that information might be disclosed to a credit reporting agency…”

(8) A credit provider must not give to a credit reporting agency personal information relating to an individual if:

(c) the credit provider did not, at the time of, or before, acquiring the information, inform the individual that the information might be disclosed to a credit reporting agency.

Dun & Bradstreet:
The second largest credit reporting agency in Australia and holder of approximately 2,000,000 commercial records. Recently commenced operation of its consumer credit database.
False or misleading credit reports

Pursuant to Section 18R of the Act, it is an offence to publish a false or misleading credit report:
(1) A credit reporting agency or credit provider must not give to any other person or body (whether or not the other person or body is a credit reporting agency or credit provider) a credit report that contains false or misleading information.

(2) A credit reporting agency or credit provider that intentionally contravenes subsection (1) is guilty of an offence punishable, on conviction, by a fine not exceeding $75,000.

Foot Print:

The required notation on an individuals credit file which must record accurately the date and name of the credit provider who has gained access to the individuals credit report.

Identifier:

includes a number assigned by an organisation to an individual to identify uniquely the individual for the purposes of the organisation’s operations. However, an individual’s name or ABN (as defined in the A New Tax System (Australian Business Number) Act 1999) is not an identifier.

Individual:

means a natural person.

Information Privacy Principle:

means any of the Information Privacy Principles set out in section 14.

Injunction:
(1) Where a person has engaged, is engaging or is proposing to engage in any conduct that constituted or would constitute a contravention of this Act, the Federal Court or the Federal Magistrates Court may, on the application of the Commissioner or any other person, grant an injunction restraining the person from engaging in the conduct and, if in the court’s opinion it is desirable to do so, requiring the person to do any act or thing.

(2) Where:

(a) a person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

(b) the refusal or failure was, is, or would be a contravention of this Act;

(c) the Federal Court or the Federal Magistrates Court may, on the application of the Commissioner or any other person, grant an injunction requiring the first-mentioned person to do that act or thing.

(3) Where an application is made to the court for an injunction under this section, the court may, if in the court’s opinion it is desirable to do so, before considering the application, grant an interim injunction restraining a person from engaging in conduct of the kind referred to in that subsection pending the determination of the application.

(4) The court may discharge or vary an injunction granted under this section.

(5) The power of the court to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

(a) if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

(b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person engages in conduct of that kind.

(6) The power of the court to grant an injunction requiring a person to do a particular act or thing may be exercised:

(a) if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

(b) if it appears to the court that, in the event that an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the first-mentioned person refuses or fails to do that act or thing.

(7) Where the Commissioner makes an application to the court for the grant of an injunction under this section, the court shall not require the Commissioner or any other person, as a condition of the granting of an interim injunction, to give any undertakings as to damages.

(8) The powers conferred on the court under this section are in addition to, and not in derogation of, any powers of the court, whether conferred by this Act or otherwise.

Judgment:

A record of the decision handed down by a Magistrate against a debtor which becomes publicly available information. This information is then collected by the credit reporting agencies and is uploaded onto their database. This type of information will remain on a credit report for 5 years.

Loan:

means a contract, arrangement or understanding under which a person is permitted to defer payment of a debt, or to incur a debt and defer its payment, and includes:

(a) a hire-purchase agreement; and

(b) such a contract, arrangement or understanding for the hire, lease or renting of goods or services, other than a contract, arrangement or understanding under which:

(i) full payment is made before, or at the same time as, the goods or services are provided; and

(ii) in the case of a hiring, leasing or renting of goods—an amount greater than or equal to the value of the goods is paid as a deposit for the return of the goods.

National Privacy Principle:

means a clause of Schedule 3. A reference in this Act to a National Privacy Principle by number is a reference to the clause of Schedule 3 with that number.

Order:

A decision relating to a complaint or statement of liquidated claim handed down by a Magistrate either for or against the plaintiff who issued the original proceedings.

Personal information:

means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

Privacy Commissioner:

See Commissioner.

Record:

means:

(a) a document ; or

(b) a database (however kept); or

but does not include:

(d) a generally available publication; or

(e) anything kept in a library, art gallery or museum for the purpose of reference, study or exhibition, or

(f) Commonwealth records as defined by subsection 3 (1) of the Archives Act 1983 that are in the open access period for the purpose of that Act; or

(fa) records (are defined in the Archives Act 1983) in that the custody of the archives (as defined in the Act) in relation to which the archives have entered in to arrangements with a person other than a Commonwealth institution (as defined in that Act) providing for the extent to which the Archives or other persons are to have access to the records, or

(g) documents placed by or on behalf of a person (other than agency) in the memorial collection within the meaning of the Australian War Memorial Act 1980, or

Sensitive information

means:

(a) information or an opinion about an individual’s:

(i) racial or ethnic origin; or

(ii) political opinions; or

(iii) membership of a political association; or

(iv) religious beliefs or affiliations; or

(v) philosophical beliefs; or

(vi) membership of a professional or trade association; or

(vii) membership of a trade union; or

(viii) sexual preferences or practices; or

(ix) criminal record;

that is also personal information; or

(b) health information about an individual.

Serious credit infringement

See Clearout for brief description of this type of default

means an act done by a person:

(a) that involves fraudulently obtaining credit, or attempting fraudulently to obtain credit; or

(b) that involves fraudulently evading the person’s obligations in relation to credit, or attempting fraudulently to evade those obligations; or

(c) that a reasonable person would consider indicates an intention, on the part of the first-mentioned person, to no longer comply with the first-mentioned person’s obligations in relation to credit.

Section 18E(8)(c)

See Disclosure Notice.

Use:

in relation to information, does not include mere disclosure of the information, but does include the inclusion of the information in a publication.

(1A) In order to avoid doubt, it is declared that an ACT enactment is not a Commonwealth enactment for the purposes of this Act.

(2) For the purposes of this Act, an act or practice breaches an Information Privacy Principle if, and only if, it is contrary to, or inconsistent with, that Information Privacy Principle.

(3) For the purposes of this Act, an act or practice breaches a guideline issued under section 17 if, and only if, it is contrary to, or inconsistent with, the guideline.

(3A) For the purposes of this Act, an act or practice breaches the Code of Conduct if, and only if, it is contrary to, or inconsistent with, the Code of Conduct.

(4) The definition of individual in subsection (1) shall not be taken to imply that references to persons do not include persons other than natural persons.

(5) For the purposes of this Act, a person shall not be taken to be an agency merely because the person is the holder of, or performs the duties of:

(a) a prescribed office;

(b) an office prescribed by regulations made for the purposes of subparagraph 4(3)(b)(i) of the Freedom of Information Act 1982;

(d) a judicial office or of an office of magistrate; or

(e) an office of member of a tribunal that is established by or under a law of the Commonwealth and that is prescribed for the purposes of this paragraph.

(5A) For the purposes of the definition of credit reporting business in subsection (1), information concerning commercial transactions engaged in by or on behalf of an individual is not to be taken to be information relating to an individual’s:

(a) eligibility to be provided with credit; or

(b) history in relation to credit; or

(5B) In considering whether a business or undertaking, carried on by a credit provider that is a corporation, is a credit reporting business within the meaning of this Act, the provision of information by the credit provider to corporations related to it is to be disregarded.

(5C) The regulations may provide that businesses or undertakings of a specified kind are not credit reporting businesses within the meaning of this Act.

(5D) A reference in this Act to the purchase of a loan includes a reference to the purchase of rights to receive payments under the loan.

6) For the purposes of this Act, the Department of Defence shall be taken to include the Defence Force.

(7) Nothing in this Act prevents a complaint from:

(a) being both a file number complaint and an IPP complaint; or

(b) being both a file number complaint and a credit reporting complaint; or

(d) being both a file number complaint and an NPP complaint; or

(e) being both a code complaint and a credit reporting complaint; or

(f) being both an NPP complaint and a credit reporting complaint.

(8) For the purposes of this Act, the question whether bodies corporate are related to each other is determined in the manner in which that question is determined under the Corporations Act 2001.

(9) To avoid doubt, for the purposes of this Act, services provided to an agency or a State or Territory authority include services that consist of the provision of services to other persons in connection with the performance of the functions of the agency or State or Territory authority.

Uniformed Consumer Credit Code 1995:

means the forerunner of the Credit Act 1986 which sought to unify all of the individual state laws into one unified Code. The UCCC is binding on all credit providers who fall within its jurisdiction.

Glossary

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