DETERMINATION 2004 No. 1 PRIVACY ACT 1988, s.11B(1)(d)(ii) - concerning the Department of Employment and Workplace Relations

View printable version of this page

This document has been archived and is no longer in use by the Office. A list of the Office's current Credit Provider Determinations is available on the Credit Reporting page - http://www.privacy.gov.au/act/credit/

Under s.11B(1)(d)(ii) of the Privacy Act 1988, I DETERMINE that:

1. The Australian Government Department of Employment and Workplace Relations is a credit provider for the purposes of the Act.
2. This determination shall take effect on 8 September 2004 and it shall lapse, unless continued by a further determination of the Privacy Commissioner, on 9 October 2005.

KAREN CURTIS
Federal Privacy Commissioner

2 September 2004

DETERMINATION 2004 NO.1 UNDER s.11B(1)(d)(ii) - CONCERNING THE DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS: REASONS FOR DETERMINATION

The Reasons for making Determination 2004 No.1 are set out below.

Section 11B(1)(d) of the Privacy Act 1988 (the Act) provides:

(1) For the purposes of this Act a person is a credit provider if the person is:

Application by ATSIC

1. On 16 November 1999, Determination 1999 No.1 was made under section 11B(1)(d)(ii) of the Act to the effect that the Aboriginal and Torres Strait Islander Commission (ATSIC) was a credit provider for the purposes of the Act. A copy of Determination 1999 No.1 is Attachment A.

2. For the purposes of that Determination, the Office consulted widely on a number of issues and received advice from the Aboriginal and Torres Strait Islander Social Justice Commissioner (the Social Justice Commissioner) in the Human Rights and Equal Opportunity Commission. Both the issues and the advice received are detailed in the Reasons for Determination forming part of Determination 1999 No. 1.

3. In making Determination 1999 No.1, a number of factors, as detailed in the Reasons for Determination, were taken into account They included:

• That ATSIC has a statutory function of making loans to individuals under the Aboriginal and Torres Strait Islander Commission Act 1989 (the ATSIC Act) and the making of such loans formed a core part of ATSIC's business; That ATSIC made loans on a basis that equated with the 'normal commercial practice' of other credit providers and that being a credit provider would greatly improve the efficiency of ATSIC's loans procedures.

Application by ATSIS

5. On 11 August 2003, the Aboriginal and Torres Strait Islander Services (ATSIS) applied for a determination under section 11B(1)(d)(ii) of the Act. In its application for credit provider status, ATSIS advised that, on 28 May 2003, it was established as a federal Executive Agency under the Public Service Act 1999, and as a prescribed agency under the Financial Management and Accountability Act 1997 with effect from 1 July 2003. ATSIS is subject to the provisions of the Act.

6. Pursuant to these legislative arrangements, ATSIS advised that:

• ATSIS had assumed, on a temporary basis, the financial responsibility for many of the programs formerly administered by ATSIC;
• ATSIC, however, retained responsibility for the housing loans program under the ATSIC Act;
• Subject to the making of this determination, it was intended that ATSIS would:
  • make all new business loans, which were made previously by ATSIC, on behalf of the Australian Government;
  • make such loans in accordance with sound commercial practice and within the constraints of the definition of 'commercial credit' in section 6 of the Act; and
  • administer existing ATSIC business loans, under the terms of an agreement between ATSIC and ATSIS, paying all monies recovered regarding ATSIC's pre-July 2003 loans into an ATSIC bank account.

Consultation with Social Justice Commissioner

7. The views of the Social Justice Commissioner were sought and received regarding the application by ATSIS. The effect of the Social Justice Commissioner's advice was that:

• the arrangements between ATSIC and ATSIS were temporary, pending a final decision by the Australian Government as to the future of ATSIC and ATSIS;
• the same considerations relating to ATSIC's earlier application for credit provider status then applied to the application by ATSIS; and
• the Social Justice Commissioner supported a similar credit provider determination being made for ATSIS as had been made for ATSIC.

Conclusions regarding ATSIS application

8. On the advice then received, it was concluded, inter alia, that:

• as a result of the transfer of some of ATSIC's responsibilities to it, ATSIS would be carrying on a business or undertaking that involved the making of loans;
• the same considerations that had supported the making of Determination 1999 No. 1, concerning ATSIC, applied to the application by ATSIS;
• it would be in the interests, then, of both ATSIS and its clients, for ATSIS to have credit provider status in carrying on the business of making loans for the purposes of the Act; and
• since ATSIS had advised that the arrangements with ATSIC might be temporary, the life of the determination should not be open-ended, but should be the subject of further review when the administrative arrangements of ATSIS were settled A period of two years commencing 9 October 2003 was considered appropriate for this purpose.

9. Accordingly, these findings were made:

• ATSIS had satisfied the criteria set out in s.11B(1)(d)(i) of the Act.
• Having regard to the matters identified above, it was substantially in the public interest for the determination sought by ATSIS to be made under s.11B(1)(d)(ii).
• The Determination 2003 No.3 would lapse on 9 October 2005, unless continued by a further determination.

10. A copy of Determination 2003 No.3 is Attachment B.

Application by Department of Employment and Workplace Relations

11. On 22 July 2004, the Department of Employment and Workplace Relations (the Department) applied for a Determination under s.11B(1)(d)(ii) of the Act.

12. In its application, the Department advised that in April 2004 the Australian Government announced the following legislative proposals:

• The responsibility for ATSIC and ATSIS programmes and functions would be transferred to "mainstream agencies" including the Department.
• The Australian Government would abolish ATSIC and ATSIS.
• The responsibility for the Business Development Programme (the BDP) formerly administered by ATSIC and (from 1 July 2003) by ATSIS would be transferred to the Department.
• The administration of the BDP would be transferred to Indigenous Business Australia (IBA), a new statutory corporation established under Part 4 of the ATSIC Act.

13. On 27 May 2004, the Aboriginal and Torres Strait Islander Commission Amendment Bill 2004 (the Bill) was introduced into the House of Representatives and was passed on 2 June 2004. The Senate has referred the Bill to the Select Committee on the Administration of Indigenous Affairs to report by 31 October 2004.

14. Since 1 July 2004, ATSIS has retained a "residual role" in relation to the BDP. It continues to administer loans made before 1 July 2003 on behalf of ATSIC (see paragraph 6 above), whereas the Department has assumed the function of administering the BDP. All new business loans continue to be made by the Australian Government, which is now represented by the Department.

15. The Department has applied, therefore, for separate credit provider status to enable it to perform its loan functions under the BDP.

Factors advanced in support of the application by the Department

16. ATSIS staff, including senior management, with experience in the administration of the BDP were transferred to the Department on 2 July 2004 pursuant to s.72 of the Public Service Act 1999. The Department intends to liaise with the IBA so as to avail itself of the expertise developed by the IBA in administering the relevant provisions of the ATSIC Act.

17. The Department claims considerable experience and expertise in the administration and management of Indigenous Australian programmes, which include the Indigenous Employment Programme. These schemes, the Department notes, complement financial assistance initiatives already administered by the Department.

18. Under the BDP, loans come within the definition of 'commercial credit' in the Act and will be made, the Department notes, in accordance with sound commercial practice and with the financial management obligations imposed on Australian Government agencies.

19. In effect, the Department will be making loans on a basis that equates with the 'normal commercial practice' of other credit providers and that being a credit provider would greatly improve the efficiency of the Department's loans procedures. With credit provider status, Departmental staff will be able to gain access to credit records of applicants for business loans and to use this information to administer those loans.

Analysis

20. Regarding the history of the Credit Provider Determinations made in favour of ATSIC and ATSIS respectively, the matters outlined in the preceding paragraphs 2 to 9 (inclusive) are taken into account in considering the Department's application under s.11B(1)(d)(ii) of the Act.

21. Regarding the Department's application, the following conclusions are drawn:

• For the time being, ATSIC and ATSIS should retain their credit provider status under Determination 1999 No.1 and Determination 2003 No.3.
• The present arrangements involving the three relevant agencies and their loan-making functions need to be resolved. Pending the final resolution of these arrangements and a subsequent review of their credit provider status at an appropriate time, both ATSIC and ATSIS should continue to retain that status.
• The statutory obligations relating to the administration of the BDP are now shared between ATSIS and the Department, in much the same way as those functions were shared between ATSIC and ATSIS after 1 July 2003. Furthermore, ATSIS and ATSIC maintain a relationship of agency regarding the administration of certain loans.
• Similar considerations should be applied to the Department's application as were applied to the previous applications which resulted in the Determinations 1999 No.1 and 2003 No.3. These considerations include the outcomes from the consultations conducted by the Office with the then Social Justice Commissioner and with other relevant stakeholders.
• For the purposes of the Department's application, the Office consulted with the Aboriginal and Torres Strait Islander Social Justice Commissioner on the proposed determination. Commissioner Calma did not express any concerns regarding the making of the determination.
• Given the reasons advanced in support of the applications by ATSIC and ATSIS and the findings that it was in the public interest for determinations to be made granting credit provider status to ATSIC and ATSIS, it follows then that, since the Department now performs those same loan functions, there is adequate support for the Department's application.
• The business of making loans for the purposes of the BDP will be conducted by Departmental personnel who are experienced in the field of managing financial programmes for the benefit and assistance of indigenous persons and who, in large part, have been transferred from ATSIS.
• On all the material outlined in these Reasons for Determination, it is open to me to conclude, therefore, that it will be in the interests of ATSIS, the Department and their respective clients for the Department to have credit provider status in carrying on the business of making loans for the purposes of the Act.

22. Regarding the life of any determination to be made in favour of the Department, the following matters are noted:

• In its application, the Department requests that the determination lapse approximately two years from the date of the making of the determination.
• The Department has advised that the legislative intentions of the Australian Government (as described in paragraph 12 above), as yet, have not been realised.
• As concluded above, the current arrangements under which credit provider status for the purposes of the Act is enjoyed by ATSIC and ATSIS, and which the Department seeks, appear to be temporary.
• The temporary state of these arrangements indicates a need for me to review the two existing Determinations and any determination made in favour of the Department within a reasonable and definite period of time.
• I note that Determination 2003 No.3 is to lapse on 9 October 2005, unless continued by a further determination. Until that date, I find that there are no factors which prevent the continuation of the existing credit provider determinations in favour of ATSIC and ATSIS.
• Given that 9 October 2005 is the date by which an application needs to be made for a further determination in favour of ATSIS, I find it is also an appropriate date on which any determination in favour of the Department should lapse, unless continued by a further determination.
• Subject to any further applications being made regarding these determinations, I intend to review, pursuant to ss.28A(1)(d) and s.28A(2) of the Act, the two existing determinations and any determination made in favour of the Department. Any such review will conducted on or before 9 October 2005.
• Similarly, subject to any application made regarding these determinations, any review will involve appropriate community consultation, including consulting with the Social Justice Commissioner.

Findings

23. I make the following findings:

• The Department satisfies the criteria set out in section 11B(1)(d)(i) of the Act in that it is an agency that carries on the business or undertaking that involves the making of loans.
• Having regard to the matters identified above, it is substantially in the public interest for the determination sought by the Department to be made under section 11B(1)(d)(ii) to the effect that it is a credit provider for the purposes of the Act.
• This determination will be referred to as Determination 2004 No.1 PRIVACY ACT 1988 s.11B(1)(d)(ii).
• This determination shall lapse, unless continued by a further determination by the Privacy Commissioner, on 9 October 2005.
• Subject to any application under s.11B(1)(d)(ii) of the Act before 9 October 2005, I intend to conduct appropriate community consultations into the on-going applicability and suitability of this determination and the related Determinations 1999 No.1 and 2003 No. 3.

KAREN CURTIS
Federal Privacy Commissioner

2 September 2004

ATTACHMENT A

Credit Reporting Determination: 1999 No. 1 Privacy Act 1988, s.11B(1)(d) - concerning the Aboriginal and Torres Strait Islander Commission

ATTACHMENT B

DETERMINATION 2003 No.3 PRIVACY ACT 1988, s.11B(1)(d)(ii) - concerning the Aboriginal and Torres Strait Islander Services