This document has been archived and is no longer in use by the Office.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 Aboriginal and Torres Strait Islander Services is a credit provider for the purposes of the Act.
2. This determination shall take effect on 9 October 2003 and shall lapse, unless continued by a further determination of the Privacy Commissioner, on 9 October 2005.

TIMOTHY PILGRIM Deputy Federal Privacy Commissioner

26 September 2003

DETERMINATION 2003 No. 3 UNDER s.11B(1)(d) - CONCERNING THE ABORIGINAL AND TORRES STRAIT ISLANDER SERVICES: REASONS FOR DETERMINATION

Background

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

(1) 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.

2. 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.

3. In the Reasons for Determination forming part of Determination 1999 No.1, a number of factors were taken into account, which 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 'normal commercial practice' of other credit providers and that being a credit provider would greatly improve the efficiency of ATSIC's loans procedures.

4. After wide consultation, several outstanding issues were referred for advice to the Aboriginal and Torres Strait Islander Social Justice Commissioner in the Human Rights and Equal Opportunity Commission. Both the issues and the advice received from the Commissioner are detailed in the Reasons for Determination forming part of Determination 1999 No. 1.

5. The following findings were made:

• That ATSIC satisfied the criteria set out in section 11B(1)(d)(i) of the Act; and
• That it would be substantially in the public interest for the requested determination to be made.

The Establishment of ATSIS

6. 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.

7. In its application for credit provider status, ATSIS advised that on 28 May 2003 ATSIS 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.

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

• ATSIS has assumed, on a temporary basis, the financial responsibility for many of the programs formerly administered by ATSIC;
• ATSIC, however, retains responsibility for the housing loans program under the ATSIC Act;
• Subject to the making of this determination, it is intended that ATSIS will:

• 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;
• Administer existing ATSIC business loans, under the terms of an agreement between ATSIC and ATSIS, paying all moneys recovered regarding ATSIC's pre-July 2003 loans into an ATSIC bank account.

Consultation with Social Justice Commissioner

9. The views of the Aboriginal and Torres Strait Islander Social Justice Commission were sought and received regarding the application by ATSIS. The effect of the Commissioner's advice was that:

• The arrangements between ATSIC and ATSIS are temporary, pending a final decision by the Australian Government as to the future of ATSIC and ATSIS;
• The exact considerations relating to ATSIC's earlier application for credit provider status now apply to ATSIS and its relevant functions;
• The Commissioner supports a similar credit provider determination being made for ATSIS as was made for ATSIC.

Analysis

10. On the advices received, the following conclusions are made:

• It is clear that, apart from housing loans which remain the responsibility of ATSIC, the conduct of, and the responsibility, for many ATSIC programs, have been transferred to ATSIS;
• There is no need to review Determination 1999 No. 1 concerning the credit provider status of ATSIC, as it continues to be a credit provider by virtue of the housing loans it offers;
• As a result of the transfer of some responsibilities to it, ATSIS will be carrying on a business or undertaking that involves the making of loans;
• The same considerations that supported the making of Determination 1999 No. 1, concerning ATSIC, apply to the application by ATSIS. It will, therefore, be in the interests 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;
• As to the life of the determination, having been advised by ATSIS that the current arrangements may be temporary, I take the view that it should not be open-ended, but should be the subject of further review when the administrative arrangements of ATSIS are settled. I consider that a period of two years, commencing on 9 October 2003, is appropriate for this purpose.
• Under sections 11B(3) & (4), the determination under section 11B(1)(d)(ii) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Determination

11. I find that:

• ATSIS satisfies the criteria set out in section 11B(1)(d)(i) of the Act;
• Having regard to the matters identified above, it is substantially in the public interest for the determination sought by ATSIS to be made under section 11B(1)(d)(ii);
• I have included in Determination 2003 No. 3 that it is to lapse, unless continued by a further determination, on 9 October 2005.

TIMOTHY PILGRIM Deputy Federal Privacy Commissioner

26 September 2003