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Our reference: 20 03-0315-01

Ms Tracey Donohoe

Share Register and USO Options Paper

Corporations and Financial Services Division

The Treasury

Langton Crescent

PARKES ACT 2600

Via email unsolicitedoffercomments@treasury.gov.au

Dear Ms Donohoe

ACCESS TO SHARE REGISTERS AND THE REGULATION OF UNSOLICITED
OFF-MARKET OFFERS – OPTIONS PAPER MAY 2009

The Office of the Privacy Commissioner (the Office) welcomes the opportunity to comment on the Options Paper Access to share registers and the regulation of unsolicited off-market offers [1] (the Options Paper).

Privacy policy settings for share registers

As the Options Paper states, there are good public policy reasons why shareholders’ personal information should be held on such registers, why the information should be open for examination and why shareholders should be contactable for specific purposes. Ensuring there are appropriate privacy protections is not incompatible with that objective. Rather, good privacy practices can complement and enhance that objective.

The Office suggests that open and accountable personal information handling means that when an individual investor takes up shares in a public company they should know that their information will appear on its share register, who will have access to the register, and what their personal information may be used for. If this happens, individuals will have a clear understanding about what is a permitted access, use or disclosure of their personal information.

The Office believes that ensuring clarity and certainty about how individuals’ personal information will be handled in relation to share registers will lead to greater community trust in the handling of data by corporations.

Corporations Act 2001

Section 173 of the Corporations Act states that a company or registered scheme must allow anyone to inspect and take copies of a register. Section 177 lists a general prohibition on the use or disclosure of information to contact or send material to a person registered as an owner of shares.

The Options Paper, at pages 2-3, states that the restrictions in s177 are consistent with the National Privacy Principles (NPPs) in the Privacy Act 1988 . However, the Office suggests that consideration could be given to additional privacy protections to address specifically identified privacy issues which affect large numbers of individuals such as personal information on share registers being used for large scale, undervalued marketing offers.

Apart from the ‘proper purpose test’, the Options Paper does not appear to canvass whether the use or disclosure provisions in s177 of the Corporations Act or the ‘right to inspect’ provisions in s173(1) also need to be reviewed to address the issue of undervalued marketing offers.

Do Not Contact Register

The Options Paper also proposes that companies voluntarily establish a ‘Do Not Contact Register’ for their shareholders, separate to their share register. The Office understands that the effect of a ‘Do Not Contact Register’ would be that those individuals that are included in the register will only receive communications related to the company itself or regulated takeover information.

The Office generally supports initiatives that allow individuals to take control over their personal information and therefore supports the concept of Do Not Contact Registers, subject to knowing more about the detail of how they would operate in practice.

If you wish to discuss these comments further please contact me on 02 9284 9800 or by email: andrew.solomon@privacy.gov.au

Yours sincerely

Andrew Solomon

Director, Policy

4 August 2009