This document has been archived and is no longer in use by the Office.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 section 11B(1)(d) of the Privacy Act 1988, I DETERMINE that:

1. The Aboriginal and Torres Strait Islander Commission is a credit provider for the purposes of the Privacy Act 1988.
2. This determination shall take effect fifteen sitting days following 22 November 1999.

Dated 16 November 1999.

MALCOLM CROMPTON

Privacy Commissioner

[Note: The above determination took effect on Friday 10 March 2000]

DETERMINATION 1999 No 1 PRIVACY ACT s11B(1)(d) - CONCERNING THE ABORIGINAL AND TORRES STRAIT ISLANDER COMMISSION - REASONS FOR DETERMINATION

1. Attached is a determination issued under section 11B(1)(d) with the effect that, for the purposes of the Privacy Act, the Aboriginal and Torres Strait Islander Commission (ATSIC) is a 'credit provider'.
2. Under section 11B(4) of the Privacy Act, the determination is a disallowable instrument for the purposes of the Acts Interpretation Act 1901.

   BACKGROUND:

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

"For the purposes of this Act... a person is a credit provider if the person is...

(d) an agency that:

(i) carries on a business or undertaking that involves the making of loans; and

(ii) is determined by the Commissioner to be a credit provider for the purposes of this Act.

1. In 1998, the Aboriginal and Torres Strait Islander Commission (ATSIC) applied for a determination under section 11B(1)(d) of the Privacy Act 1988.
2. ATSIC advised in its application that it meets the criteria contained in s.11B(1)(d)(i) for the following reasons:
   • it has a statutory function of making loans under the Aboriginal and Torres Strait Islander Commission Act 1989 (the "ATSIC Act");
   • making loans is a core part of ATSIC's business; and
   • it makes loans on a basis that equates with the 'normal commercial practice' of other credit providers.
3. ATSIC considers that being a credit provider would greatly improve the efficiency of its loan assessment procedures as it would be able to obtain credit reports directly from a credit reporting agency. There is currently a delay of up to six weeks in obtaining copies of applicants' credit reports, as clients have to obtain their own reports and then provide them to ATSIC. ATSIC is also concerned that in some cases, clients may neglect to provide certain identifying information to the credit reporting agency which may result in an inaccurate report.
4. This also means that there is no record of loan applications made to ATSIC by individuals recorded on their credit reports. This can mean that other credit providers are disadvantaged, as they have no indication of the financial relationships between ATSIC and the individuals. This could also work to the detriment of individuals, as it may allow them to become more and more burdened by debt, to the point of possibly losing their home or business as a result.
5. With the permission of ATSIC, the former Privacy Commissioner, Moira Scollay, consulted widely and the following issues were raised in response:
   • As a result of the determination, ATSIC may be able to use credit information for matters unrelated to credit.
   • The identification of individuals as Aborigines or Torres Strait Islanders as a result of ATSIC appearing on their credit reports may lead to discrimination.
   • The fact that ATSIC is already protected from false or misleading statements in relation to loan applications by section 197 of the ATSIC Act makes access to CRL unnecessary.
6. ATSIC was advised of these issues and after a considerable interim, it responded as follows.
   • All information provided to ATSIC by applicants in relation to a loan, grant or guarantee is subject to the secrecy provisions contained in section 90 of the ATSIC Act. Any release of loan information by a staff member or other officer listed in section 90 would constitute a criminal offence.
   • While the majority of ATSIC funding is to Aboriginal and Torres Strait Islander people, ATSIC may provide funds, under its Home and Business Loan programs, to other individuals and organisations as well. A notation of ATSIC on a Credit Report would not of itself necessarily identify the person as an Aboriginal or Torres Strait Islander person. ATSIC also argues that it is not primarily a welfare-oriented body and that two private credit unions have recently been established to provide services to Aboriginal and Torres Strait Islander people. These credit unions are, by their nature, credit providers and have access to CRL.
   • The fact that ATSIC may have recourse under its own legislation against applicants who provide false and misleading information does not lessen the need to have access to CRL. Such false or misleading information could be detected only after the loan is made and this may expose the applicant, other credit providers and ATSIC to disadvantage and detriment.
7. On receiving ATSIC's response, my office sought the views of Mr Bill Jonas, the Aboriginal and Torres Strait Islander Social Justice Commissioner in the Human Rights and Equal Opportunity Commission. Commissioner Jonas advised that, in his view:
   • there is nothing intrinsic in the structure of ATSIC that makes it more likely to misuse credit information than any other organisation. Moreover, there are provisions in both the ATSIC Act and the Privacy Act prohibiting such misuse.
   • given that ATSIC has indicated that it provides loans to non-Aboriginal and Torres Strait Islander people, it is inappropriate for the Privacy Commissioner to assume that an individual who takes out a loan with ATSIC is necessarily an Aboriginal or Torres Strait Islander person. Concerns about discrimination are not relevant to the suitability of ATSIC as a credit provider. ATSIC should not be denied credit provider status on the basis that other persons or organisations might commit unlawful discrimination. The Commissioner also raised the prospect that such a denial might raise questions about the compliance of my office with the Race Discrimination Act.
   • as ATSIC suggested, the existence of other mechanisms for recourse against misleading statements by applicants is beside the point.

   FINDINGS

8. Given the response of ATSIC and Commissioner Jonas to the issues raised concerning the determination, I find that ATSIC does satisfy the criteria set out in section 11B(1)(d)(i) of the Privacy Act 1988. I also find that it would be substantially in the public interest for the requested determination to be made.

CONCLUSIONS

I have consequently made the attached determination.

Malcolm Crompton Privacy Commissioner

16 November 1999