Most people are very positive about changes to Australia’s Privacy Laws which are coming through Parliament, effectively bringing Australia out of the 1980’s and closer to other countries in our treatment of Privacy and personal information. But others are a little unsure they go far enough in many areas. We look at one opinion of how the new credit laws apply to credit reporting .
An interesting post came through from ‘The Conversation’ yesterday written by Bruce Arnold, Lecturer of Law at University of Canberra. The post Two cheers for privacy law reform? Let’s wait and see looks at the potential benefits of these new Privacy Laws, and where perhaps the laws may be lacking:
“For many people the bleeding edge of privacy law has been their credit records. The Bill rationalises the current credit reporting regime, which has featured strong disagreement between competing industry bodies and examples of bad practice by particular enterprises. That rationalisation is to be strongly welcomed by consumers and business as providing greater transparency and certainty. Its success however will be dependent on action by the national Privacy Commissioner, an entity within the national Office of the Information Commissioner. Under the proposed law, credit providers will have access to additional personal information with the expectation that more data will facilitate “a more robust assessment” of credit risk and “responsible lending” that may also “result in reductions to the cost of credit for individuals”. As with much finance, we will trust that lenders will pass on their savings to consumers.
The Bill aims to give the Commissioner greater powers, for example scope for “own motion” investigations rather than in response to complaints by individuals who claim that there privacy has been disrespected. It is unclear whether the Commissioner will make effective use of those powers, given difficulties with resourcing and perceptions – fair or otherwise – that the office lacks both the will and expertise to take on particular interests. Historically it has endorsed industry practice that although commonplace, is below overseas benchmarks and is less than desired by many Australians.
The Commissioner will be able to recognise external dispute resolution mechanisms, something that is consistent with the trend to outsourcing and administration and presumably welcomed by business.
The Bill does not provide for a tort of serious invasion of privacy – that is, scope for an individual to seek compensation over an invasion of their privacy by an individual or an organisation. That tort has been recommended by the ALRC and by the law reform commissions of New South Wales and Victoria. It is thus hardly a radical or alarming notion, although it has been strongly opposed by the major media groups and some legal practitioners. The Government’s willingness to proceed with suggestions for establishment of the tort as we head towards an election is unclear.
Enactment of the Australian Privacy Principles is a step forward, deserving of two cheers even if we ask why has it taken so long and wonder how the APP will be interpreted by the Privacy Commissioner. Rationalisation of credit reporting law, in conjunction with the National Consumer Credit Protection Act 2009 (NCCPA) is also meritorious, although in one of the most messy areas of privacy practice we will need to see how business implements the revised arrangements and whether there is meaningful enforcement by the Privacy Commissioner,” Mr Arnold says.
It will be interesting to see how the actual application of dispute resolution pans out in the credit reporting landscape including how the changes will alter the Credit Reporting Code of Conduct. We will certainly adopt the ‘wait and see’ approach as to whether the changes will indeed make it ‘easier’ to dispute credit listings and fix unnecessary bad credit as claimed by Attorney-General Nicola Roxon.